"Gardner on verge of claiming his spot in infamy; Firing squad method has garnered international attention," by Pamela Manson. (6/16/10)

If all goes as expected, Ronnie Lee Gardner will take his place in history Friday as the third person in the nation to die by firing squad since the U.S. Supreme Court reinstated the death penalty in 1976. He could also be the last -- or one of the last -- in the nation to be executed that way in the United States.

Utah is the only state still using shooters, and only the four men on death row who initially selected the firing squad before the state eliminated it in 2004 could still choose bullets over lethal injection. Forty of the 50 men legally executed in Utah since 1852 have been killed by firing squad, according to Weber State University criminologist L. Kay Gillespie. Six were executed by hanging -- an option along with beheading under Utah's first capital-punishment law -- and four by lethal injection.

When lawmakers were debating the use of firing squads in 2004, then-Sen. David Thomas, R-South Weber, said the firing squad had been an effective method since statehood and supported keeping it. But he was outvoted, with some legislators citing the publicity that surrounds firing squad executions. The last Utah inmate to die by firing squad was John Albert Taylor in 1996, who said he selected the method to embarrass the state. His death made international headlines. Before Taylor, Gary Gilmore ultimately chose to die by bullets rather than lethal injection. Gilmore's crimes and execution spawned the book The Executioner's Song and a television movie of the same name.

The state Attorney General's Office has said it could have argued Gardner, 49, did not have the right to switch back to firing squad but decided not to dispute his choice. The other death-row inmates who initially picked firing squad are Ron Lafferty, Ralph Leroy Menzies, Troy Michael Kell and Taberon Dave Honie.

How will the execution take place?

A firing squad is scheduled to execute Ronnie Lee Gardner at 12:05 a.m. Friday at the Utah State Prison in Draper. Gardner will be strapped to a chair with a target over his heart, and can give his last words before a hood is placed over his head. Five anonymous shooters, all certified peace officers, will then open fire. Four will have live rounds in their rifles; one will have a wax bullet.

Why was Gardner sentenced to die?

Twelve jurors sentenced Gardner to death for the slaying of lawyer Michael Burdell during an April 2, 1985, escape attempt from a Salt Lake City courthouse. Gardner had been appearing in court for the 1984 murder and robbery of Melvyn Otterstrom when he was slipped a gun. He wounded bailiff Nick Kirk before fatally shooting Burdell.

Who will witness the execution?

Gardner can invite five witnesses, and up to five relatives of his victims can also witness his death. Other allowed witnesses include Attorney General Mark Shurtleff or a designee; a prosecutor and two law-enforcement officers from Salt Lake County; and nine news reporters. Witnesses can comment at a news conference to be held at the prison after the execution.

Will there be protests? The Utah Department of Corrections has set up a demonstration area at the Department of Motor Vehicles, 14555 S. Minuteman Drive (50 East) in Draper. Utahns for Alternatives to the Death Penalty is sponsoring two events today. An interdenominational prayer service will be held from 5:30 p.m. to 6:30 p.m. at St. Mark's Cathedral, 231 E. 100 South, Salt Lake City. At 9 p.m., the group will rally on the south steps of the Utah State Capitol Building.

How will television stations cover the execution?

All four local television newscasts will update their newscasts with live coverage of events Thursday. KTVX Channel 4 and KUTV Channel 2 will have live news updates at the beginning of their 5, 6 and 10 p.m. newscasts. KSL Channel 5 will have live coverage during all of their nighttime news casts from 4 p.m. to 6:30 p.m. and at 10 p.m. KSTU Channel 13 will have updates on their 5, 5:30 and 9 p.m. newscasts as well as another update at 10 p.m. All four channels will carry the news conference announcing Gardner's death early Friday live.

Is there any chance defense attorneys could stop the execution?

As of late Wednesday, Gardner had appeals pending at the U.S. Supreme Court and the 10th U.S. Circuit Court of Appeals. Word of any last-minute stays of execution Thursday night will come over a direct phone line set up between the prison and the Utah Attorney General's Office.

Salt Lake Tribune

"Gardner timeline: Lifetime of violent crime led to death row." (Salt Lake Tribune Updated: 06/07/2010 06:30:30 AM MDT)

Jan. 16, 1961 » Gardner is born in Salt Lake City.
March 31, 1965 » Gardner is admitted to a hospital after contracting meningitis.
Feb. 16, 1972 » A child worker reports Gardner needs to be evaluated at the state hospital in Provo to determine why he is so difficult
May 23, 1977 » Gardner's daughter is born
Feb. 9, 1980 » Gardner's son is born
Feb. 25, 1980 » After being convicted of robbery, Gardner arrives at the Utah State Prison for the first time.
April 19, 1981 » Gardner and another inmate escape from the minimum security unit at the Utah State Prison.
April 30, 1981 » Gardner, on the loose, confronts a man sleeping with his girlfriend; Gardner shot in the neck; police arrest Gardner.
Aug. 6, 1984 » During an exam, Gardner overpowers a guard at University Hospital, steals his pistol, kidnaps an employee and escapes.
Oct. 9, 1984 » Gardner, still on the loose, murders Melvyn Otterstrom during a robbery.
April 2, 1985 » On way to court, a woman slips Gardner a gun. He kills attorney Michael Burdell and wounds bailiff Nick Kirk.
Oct. 22, 1985 » A jury convicts Gardner of capital murder, and other felonies for the courthouse shooting.
Oct. 25, 1985 » The same jury decides Gardner should be executed.
Aug. 24, 1990 » Gardner is to die by lethal injection but the execution is averted pending appeal.
July 26, 1991 » State judge rules Gardner had ineffective counsel during sentencing phase.
Sept. 25, 1994 » Gardner stabs another inmate, who survives.
Nov. 10, 1994 » Utah Supreme Court reverses the state judge.
March 8, 1996 » Gardner's execution is stayed again, pending appeals.
Aug. 3, 2003 » A federal magistrate recommends dismissing Gardner's numerous appeals; a federal judge later agrees.
April 30, 2004 » The Utah Supreme Court denies Gardner a new trial.
March 8, 2010 » U.S. Supreme Court declines to hear Gardner's appeals.
April 23, 2010 » A state judge schedules Gardner's execution for June 18.

ProDeathPenalty.Com

In February of 1980, Ronnie Lee Gardner was sent to prison for the first time, on a robbery conviction. On April 19, 1981, Gardner escaped from prison with another inmate. Two weeks later, Gardner finds and confronts a man who was sleeping with Gardner's girlfriend. Gardner is wounded by gunfire and is eventually arrested and returned to prison.

Serving sentences in the Utah State Prison for convictions of robbery, burglary and escape, Gardner is already a career criminal. On August 6, 1984, he was taken to the University of Utah Medical Center for a check-up where he overpowered a guard, stole his pistol and escaped again.

On October 9, 1984, Melvyn John Otterstrom was shot and killed by Gardner as he tended bar at the Cheers Tavern in Salt Lake City. Mel Otterstrom was a husband and father who worked at the Utah Paper Box Company as a controller and moonlighted as a bartender part-time in the evenings. The medical examiner testified in a pre-trial hearing that Otterstrom was probably lying on his back on the floor when he was shot in the face. The bullet went through his skull. Darcy Perry McCoy testified under a grant of immunity in the Otterstrom case that she helped Gardner plan a robbery and waited for him in a car outside Cheers the night of the killing. Gardner was captured in November 1984.

On April 2, 1985, Ronnie Lee Gardner was under a $1.5 million bail and was transported from the Utah State Prison to the Metropolitan Hall of Justice in Salt Lake City for a pretrial hearing on a second degree murder charge for killing Melvyn Otterstrom. As Gardner and his guards entered the courthouse basement, Darcy Perry McCoy's sister, Carma Jolley Hainsworth, walked up and handed Gardner a gun. It was later discovered that she had also hidden a bag containing men's clothing, duct tape and a knife in a tote bag under a sink in the women's bathroom in the basement of the courthouse. The guards exchanged gunfire with Gardner, shot him through the lung, and then retreated from the area. In attempting to escape, Gardner entered the archives room, where he saw two attorneys, Robert Macri and Michael Burdell, hiding behind the door. Gardner pointed the gun at Macri and cocked the hammer of the gun. Burdell exclaimed, "Oh, my God!" Turning, Gardner shot Burdell, who died in surgery 45 minutes after the shooting. Gardner then forced prison officer Richard Thomas, who was also in the basement, to conduct him out of the archives room to a stairwell leading to the second floor. As Gardner crossed the lobby, he shot and seriously wounded Nicholas G. Kirk, then 58, a uniformed bailiff who was unarmed and had just stepped off an elevator. Gardner climbed the stairs to the next floor, where he took hostage Wilburn Miller, a vending machine serviceman. As Gardner exited the building, Miller broke free and escaped. Outside, Gardner was surrounded by half a dozen waiting policemen with drawn weapons. Ordered to drop his weapon, he threw down his gun and lay down, surrendering to the officers.

Gardner's attorneys, brothers Andrew and James Valdez of Salt Lake Legal Defenders Association, were to meet Gardner that day at 9:00 a.m. for the pretrial hearing. Andrew Valdez was walking toward the courthouse when he saw Gardner go down to the ground. As Andrew ran across the street, he could see that Gardner was bleeding from the chest. Andrew spoke with Gardner and then left. James Valdez arrived at the courthouse soon after. He immediately approached Gardner and asked him if he was all right; Gardner responded that he was in pain. Gardner was later transported to the University Hospital. Wayne Jorgensen, a prison officer assigned to guard Gardner at the hospital, testified at trial that Gardner told him he shot Burdell because he thought Burdell looked as if he would jump on him. According to Jorgensen, Gardner also declared that he would have killed anyone who tried to stop him from escaping.

Both Andrew and James Valdez represented Gardner at trial. The thrust of the defense was that Gardner was in such pain and physical distress after he was wounded that his shooting Burdell was only a reaction and therefore the killing was unintentional. In preparation for trial, defense counsel spoke with the emergency room doctors who treated Gardner. The doctors told counsel that Gardner was not in shock when he came into the emergency room, did not have excessive bleeding, was lucid and demanding, and was aware of the situation.

Robert Macri testified at trial that after Gardner shot Burdell, Macri ran around the door and closed it behind him as a shield. However, at the preliminary hearing, Macri testified that he could not remember how the door shut. After the preliminary hearing but before trial, unknown to either the prosecution or defense counsel, Macri underwent hypnosis to help him remember how the door shut. Macri could not recall that detail while under hypnosis but asserted that while driving to California some months later, he suddenly recalled that he had shut the door. In all other respects, Macri's testimony at the preliminary hearing and at trial were the same. It was at the post-conviction proceeding while Gardner's appeal was pending that defense counsel first became aware that Macri had been hypnotized prior to trial.

At trial, Gardner took the stand and testified on direct examination that he had been convicted of various crimes, including crimes of violence. Defense counsel elicited this information, according to the testimony at the habeas hearing, because he believed that the prosecution would use those convictions to impeach Gardner and he wanted to "steal the prosecution's thunder." Carma Jolley Hainsworth pleaded guilty to aiding in an escape and was sentenced to one to 15 years in prison. In September 1994, Gardner attacked and stabbed another inmate with a homemade knife several times.

Christian Science Monitor

"Ronnie Lee Gardner execution: Some experts say firing squads are more humane than injection," by Jennifer Dobner. (AP / June 16, 2010)

Salt Lake City - A condemned Utah inmate's decision to die in a barrage of bullets fired by five unnamed marksmen has been vilified by many as an archaic form of Old West-style justice. But some experts argue it is more humane than all other execution methods, without the court challenges of cruelty that have plagued lethal injection. "Lethal injection, which has the veneer of medical acceptability, has far greater risks of cruelty to a condemned person," said Fordham University Law School professor Deborah Denno, who has written extensively on the constitutional questions that surround execution methods.

Ronnie Lee Gardner picked death by firing squad because he believes it is a more humane way to die — not because it evokes drama or controversy, his attorney told The Associated Press. "It's not about the publicity. He just prefers it," attorney Andrew Parnes said.

Late Tuesday, Parnes appealed Gardner's case to both the 10th Circuit Court of Appeals in Denver and the U.S. Supreme Court, hoping to block the execution. Gardner, 49, was sentenced to death for a 1985 capital murder conviction stemming from the fatal courthouse shooting of attorney Michael Burdell during an escape attempt. Gardner was at the court because he faced a murder charge in the shooting death of bartender Melvyn Otterstrom.

Barring any last minute stays, when Gardner is killed on Friday he will be the first person to die by firing squad in the United States in 14 years. He will be the third man killed by that same method in Utah since a U.S. Supreme Court ruling reinstated capital punishment in 1976: Gary Gilmore on Jan. 17, 1977 — after famously uttering the last words, "Let's do it" — and John Albert Taylor on Jan. 26, 1996. Of the 49 executions held in Utah since the 1850s, 40 were by firing squad. The method has also been widely used around the globe and was long the primary method of execution employed by the military, even in the U.S.

But lethal injection has become the primary method used by most of the 35 states that still have capital punishment, according to the Death Penalty Information Center website. Yet it isn't without controversy. University of Colorado law professor Michael Radlet has been tracking botched executions in the U.S. and found some 42 cases that went wrong between 1982 and September of 2009. Of those executions, 30 were lethal injection, 10 were electrocution and two were from asphyxiation after exposure to lethal gas.

A court challenge of lethal injection in Kentucky essentially halted executions nationwide in 2007 as the U.S. Supreme Court grappled with whether a three-drug cocktail was more painful than just a single barbiturate. At the time, Kentucky had only had one execution by lethal injection — with no complications — but executions in Ohio and Florida had taken longer than usual and produced strong evidence that inmates had suffered severe pain in the process. The court upheld Kentucky's use of the three drugs in 2008, clearing the way for capital punishment to resume, Denno said.

The firing squad has not been similarly challenged, and by all accounts, Utah's executions by firing squad were carried out without problems, Denno said. "Even Gary Gilmore's father said it was a dignified execution," she said.

Utah's territorial government sought permission from the U.S. Supreme Court to use the firing squad back in the 1870s, according to Gillespie. The court said that "execution by shooting was not prohibited by the Eighth Amendment's cruel and unusual punishment clause, in that the method did not entail torture or unnecessary cruelty," Gillespie wrote in his book "The Unforgiven," which chronicles the history of capital punishment in Utah. Historians say the method stems from 19th Century doctrine of the state's predominant religion. Early members of The Church of Jesus Christ of Latter-day Saints believed in the concept of "blood atonement" — that only through spilling one's own blood could a condemned person adequately atone for their crimes and be redeemed in the next life. The church no longer preaches such teachings and offers no opinion on the use of the firing squad.

Death penalty advocate Kent Scheidegger agrees that capital punishment should not amount to torture, but says the average person "is not really all that concerned with a murderer experiencing painless death." Public debate is focused more on the larger issue of the death penalty and whether or not the punishment deters crime. "Arguing over the method of execution is kind of a distraction," said Scheidegger, legal director of the Sacramento, Calif., Criminal Justice Legal Foundation.

The barrage of publicity that follows the firing squad is largely what prompted Utah lawmakers to alter it's capital punishment law in 2004 to disallow the choice for inmates and make lethal injection the default method. Inmates sentenced before then — like Gardner — retain the choice. In repealing the option, Utah lawmakers said they disliked the negative media attention that firing squads focused on the state, said Republican Rep. Sheryl Allen, who twice carried legislation to change the law.

In 1996, more than 150 media outlets descended on Utah to cover Taylor's execution, painting the firing squad as an Old West-style of justice that allows killers to go out in a blaze of glory that embarrasses the state. Gardner is one of at least four of 10 men on Utah's death row who have said they want to die by firing squad.

Deseret News

"Utah has interesting history of executions; Gardner will be only the third inmate to die by firing squad since 1976." (June 16, 2010 10:02)

SALT LAKE CITY — Ronnie Lee Gardner is scheduled to be put to death by firing squad just after midnight. He will become only the seventh person executed in Utah since the death penalty was reinstated in 1976 and the third in the state, and the country, to die by firing squad.

While the method of execution is garnering as much publicity as the death row inmate himself, there was a time in Utah when a firing squad execution wasn't uncommon at all. In fact, there have been occasions where two people were executed at the same time by firing squads, sitting side by side. Utah's history is filled with stories of execution folklore, many of which sound appropriately reminiscent of the Old West from which they came.

Not including Gardner, there have been 50 people executed in Utah since 1847 — 41 by firing squad, six by hanging and four by lethal injection. Utah has never executed a woman, nor has it ever had a woman on death row. If prosecutors in Davis County convict Stephanie Sloop and seek the death penalty, she could become the first. Sloop is charged with capital murder in the death of her 6-year-old son, Ethan Stacy.

Twice, Utah has had double executions with two men dying at the same time, and twice the state has had two executions on the same day with the inmates dying separately. On May 11, 1956, Melvin Braasch and LeRoy Sullivan were executed while sitting side-by-side. Two sets of five-member firing squads were used. The inmates were allowed to have wine during their final meals. It was also in 1956 that Utah had its last hanging. No one under the age of 18 has been executed in Utah, although three people under the age of 20 have been put to death.

Weber State University criminal justice professor L. Kay Gillespie is the foremost leading authority on death row in Utah and the history of executions in the state. He has conducted countless hours of interviews with death row inmates and done extensive research into the history of the death penalty in Utah. His book, "The Unforgiven, Utah's Executed Men" looks into details about the history of executions in Utah.

Gardner has been on death row for nearly 25 years. By comparison, Robert Sutton of Tooele was executed just eight days after killing a man in 1866. In 1912, the Salt Lake Telegram wrote a story complaining about the amount of time it was taking between a homicide and the execution of the suspect — which at that point was two years. "No wonder the public forgot what he is being shot for and cared less," the newspaper wrote.

The first two men to be officially executed in Utah were killed in 1854. Two Native Americans were hanged at the Jordan River Bridge for killing two young boys. The location of the execution was not released publicly so as not to attract a big crowd.

In 1868, one of Utah's youngest inmates was executed. Chauncey W. Millard, 18, was put to death by firing squad. Legend has it that just before dying, he sold his body to a surgeon for a bag of candy, which he was still eating from when he was placed in the execution chair and shot.

One of the more infamous executions was of John D. Lee on March 23, 1877. Lee was brought back to the site of his alleged crime, the Mountain Meadow Massacre, and was shot to death while sitting on top of his coffin which he fell back into after being shot. His final words, according to Gillespie, were: "Center on my heart boys. Don't mangle my body."

That same year, executioners were left with an interesting predicament when the firing squad didn't kill the death row inmate right away. Wallace Wilkerson had a paper target pinned to his chest. He was not blindfolded or tied down to a chair. After he was shot, he immediately stood up, walked two feet and fell to his side saying, "They've missed it." Apparently when the executioners were giving the commands "Ready, aim …," Wilkerson tensed up, thus raising the target on his shirt. The bullets hit the target, but the paper was now an inch above his heart. Three shots hit his chest and a fourth his arm. Gillespie said Wilkerson lay on the ground 15 minutes before dying, and at one point officials feared they would have to shoot him again. The spectacle prompted a newspaper editorial calling for use of the guillotine as a form of execution in Utah. The guillotine was actually approved by lawmakers, but never used.

In yet another spectacle, a newspaper wrote of Enoch Davis' firing squad execution in 1894: "He died like a dog: in fact, the most despicable mangy canine whelp that ever met an ignominious fate could not have whined itself out of existence in a more deplorable, deceny-sickening state than was Enoch Davis' last hour."

It was because of accounts like that, that in 1912, the first newspaper reporter was officially allowed to view an execution and act as a pool reporter for other newspapers. The Board of Corrections reportedly hoped to stop what it considered "lurid accounts" of executions. Previously, only law enforcers were allowed to witness executions, so reporters and others had been appointed as special "sheriff's deputies" so they could view the event.

Executions in Utah weren't always private. In 1903, tickets were handed out to the public to witness a firing squad execution at the old Sugar House Prison. In 1915, death row inmate Joe Hill gave the final command to "fire" himself.

In 1951, Eliseo Mares was executed by firing squad, becoming the first person executed at the Utah State Prison's current location at the Point of the Mountain. The execution didn't go completely as planned, however. According to a Salt Lake Tribune article, the five gunmen — positioned about 15 feet away — missed twice, hitting Mares in the stomach and hip. Mares did not die for several minutes.

Gary Mark Gilmore became the first person executed in the United States since the death penalty was reinstated in 1976 when he was killed by firing squad on Jan. 17, 1977. It was also the first indoor execution in Utah since 1951. Gilmore was seated in an office chair when he was shot. Nineteen years later, a custom-made firing squad execution chair was built and used for John Albert Taylor's execution.

While Utah has almost always had a five-man firing squad, the distance between the gunmen and the inmate has varied anywhere from 15 to 180 feet. When Gardner is executed, the distance between the gunmen and him will be 23 feet. In a five-man firing squad, one person is given a gun loaded with a blank. The thought is that each gunman can walk away not really knowing if they fatally shot the inmate.

In the same sense, a hanging execution in 1912 in Utah was conducted by three ropes being pulled, with only two of them releasing the trap door. Hanging was outlawed in Utah in 1980. Utah executioners are also always paid in cash so there's no paper trail from a check or credit card. The idea is to preserve their identity.

While the Taylor firing squad execution on Jan. 27, 1996, drew worldwide media attention to Utah, the execution of Bill Bailey by hanging in Delaware just two days earlier was barely a blip on some news channels. Bailey was the last person to be executed by hanging in the U.S. Utah has never used the electric chair for executions, though at one time it was approved by lawmakers. In Virginia, Paul Warner Powell was put to death by use of the electric chair on March 18 of this year. Ogden Hi-Fi killer Pierre Dale Selby was the first person in Utah to die by lethal injection, in 1987.

In 1923 the total cost of an execution was $200, according to Gillespie. By 1944, it was $653. A 2004 memo issued by the Department of Corrections showed the approximate cost of an execution then when supplies, manpower and overtime pay were considered, was more than $45,500.

According to Utah law, executions cannot be held on a Sunday, Monday or a legal holiday. Pregnant women are not allowed to be executed in Utah, although that law has never been put to the test.

Although a physician typically declares the inmate dead after an execution, doctors will not administer the drugs used for lethal injection. According to Utah law, corrections officials must find people "trained in accordance with accepted medical practices."

Deseret News

"Melvyn Otterstrom was 'glue' to family; Relatives say his killer, Ronnie Gardner, is like a deadly disease," by Emiley Morgan. (June 12, 2010)

SALT LAKE CITY — Over the years, Melvyn Otterstrom has become an almost mythic figure to those in his family who have had to carry on without him. "He was the glue in our family," said niece Jenny Sedgwick. "Melvyn was security and safety to us, and when he was gone, it was, 'Now what?' He was safety; he would be there to help us if we needed him. Many times I've thought: 'If Melvyn was here, maybe that would be different.'?" "He made everything all right," added his sister and only sibling, Carolyn Crawford. "If Melvyn were around, everything would be fine."

But Otterstrom could never right all the wrongs. He could never pull out his trumpet and "play 'Moon River' to make you cry," as his life was stolen 25 years ago on an October night in 1984. Otterstrom, a comptroller working for Utah Paper Box, was also working one night a week as a bartender at Cheers Tavern in Salt Lake City. In a robbery gone wrong, Ronnie Lee Gardner shot the man once in the face, leaving him to be discovered later by his wife, Kathy.

Otterstrom was the first murder attributed to Gardner. Gardner was in court facing charges for Otterstrom's death when he grabbed a gun that had been smuggled into the building. As he tried to escape, Gardner shot and killed defense attorney Michael Burdell and wounded court bailiff George "Nick" Kirk. He was sentenced to die and then went to work appealing the death sentence. And, in the interim, Melvyn Otterstrom became "a bartender," "another man," a mere footnote. "That is something that has hurt us all these years," Sedgwick said. "It's just kind of an injustice to portray him as just a bartender. He loved adventures, he loved mountain climbing, he was a businessman, and he took his job seriously."

Otterstrom was 37 years old when he died, a married father of one with a large, tight-knit extended family. An avid outdoorsman, he was a lover of life who enjoyed learning, hunting, cars and spending time with his family. He was "very outgoing, very friendly and funny, but could turn and be very serious," Crawford said. An Eagle Scout, Otterstrom went on to join a Green Beret unit with the Utah National Guard before graduating with a degree in business administration and accounting at the University of Utah. His family describes Kathy as the "love of his life" with whom he had a son of whom he was extremely proud.

Jason Otterstrom, who was just 3 when his father was killed, is now engaged to be married and is pursuing a doctorate degree. To Otterstrom's cousin, Craig Watson, Jason Otterstrom is an example of not letting challenges define your life — a marked contrast to what Gardner is arguing in his attempts to have his life spared. "They keep talking about how Gardner struggled in his childhood, but we make our own bed and then we have to lie in it," Watson said. "You look at Jason, and you don't think he's struggled without a dad? He's getting a Ph.D, for hell's sake. There are a whole bunch of people who have had tough lives, and they didn't turn into murderers."

Gardner has become a plague on the family, an illness that won't abate. In a statement written to the Utah Board of Pardons, the family wrote: "Mr. Gardner is injected into our family like a deadly disease." "Every time this comes up, it consumes our family," Sedgwick said.

The way the family sees it, Gardner is responsible for five deaths. Melvyn Otterstrom and Michael Burdell, yes, but also Kirk, who died eight years after he was shot from issues stemming from the stomach wound, and Melvyn Otterstrom's parents, John and Florence, who never recovered from their son's death. As the years pass and Gardner resurfaces in the headlines, they have to remind the younger generations of who Melvyn was. They question how it can take so long to bring someone to justice. It becomes painfully frustrating for the family members, who want to put Gardner out of their minds. "It bothers me it took so long," Crawford said. "It needs to be over and done. It just needs to end."

Sedgwick points out that Gardner killed Otterstrom after he had escaped from prison, and Burdell was killed during another escape. She feels society is not safe until Gardner is dead. Even then, his death will never return her beloved uncle, who "was kind of a big brother, kind of a father figure" to her. "He was always there for us," she said. "Every time we get together as a family, I feel like we're painfully reminded that he's gone. It's like, the family is not complete. We just miss him all the time."

Deseret News

"Ronnie Lee Gardner identifies 2nd accomplice in courthouse escape attempt, by Aaron Falk. (Tuesday, June 15, 2010 10:30 p.m. MDT)

UTAH STATE PRISON — He never called her by name, but as Ronnie Lee Gardner pleaded last week for his life to be spared, he finally gave up an accomplice in his deadly courthouse escape attempt a quarter century ago. Before the Board of Pardons and Parole, Gardner identified the woman who handed him the .22-caliber revolver he used in 1985 to shoot a bailiff and kill a defense attorney as "the woman who testified against me in the Cheers murder" and was his getaway driver in that 1984 killing of a Salt Lake bartender.

Darcy Perry McCoy drove Gardner during the robbery and killing of Melvyn Otterstrom at the Cheers Tavern in 1984, and later testified against him in court. But it was McCoy's sister who would spend eight years in prison for aiding his attempted escape from the Metropolitan Hall of Justice on April 2, 1985. Gardner shot bailiff Nick Kirk and attorney Michael Burdell as he tried to get away. Burdell died.

Though she was often accused of handing Gardner the gun in the courthouse, Carma Hainsworth always maintained her role that day was limited to transporting letters from Gardner to her sister and gathering the clothes for Gardner to wear after he escaped. "I did not know what was going to happen that morning," Hainsworth told the Board of Pardons during a 1987 hearing. "I did not know nothing about that."

Hainsworth repeatedly told officials her lookalike sister, McCoy, gave Gardner the gun, a claim corroborated by Luther Hensley, the officer who shot and injured Gardner during the escape attempt. Other witnesses, however, identified Hainsworth as the woman in the courthouse. "We can live with that conflict," a hearing officer told Hainsworth in 1987, "because we have to do it a lot."

Summit County Undersheriff L. Dean Carr, a lieutenant with the Salt Lake County Sheriff's Office in the late '80s, said he also believed McCoy was involved in the escape attempt but could never put together a case against her.

Bob Stott, a veteran prosecutor with the Salt Lake District Attorney's Office, also had trouble building a case against McCoy. "Some witnesses had seen two women upstairs and around the courthouse, but they could only identify Carma," he said. "It could have easily been the two women. But we didn't have any evidence then and I don't think we give much credibility to anything Mr. Gardner says."

During a parole hearing in 1987, Hainsworth said she hoped to work in youth corrections once she was released from prison. Since then, Hainsworth has remarried and changed her last name. Hainsworth has also been arrested and convicted on a number of felony crimes, including burglary, theft, possession of meth and identity fraud, the latest coming in 2007.

In a Spanish Fork courtroom just last week, Hainsworth pleaded no contest to driving on a suspended license and agreed to do community service to work off her $100 fine. When approached by the Deseret News, her husband said, "If this is about the Ronnie Lee Gardner, please back away right now."

Deseret News

"Fiancee, father of victim Michael Burdell don't want death sentence for Ronnie Lee Gardner; They say execution of killer would be another victory for violence," by Josh Smith. (Published: Saturday, June 12, 2010 9:03 p.m. MDT)

SALT LAKE CITY — His was a life of peace, shattered by senseless violence. But family and friends of slain attorney Michael Burdell say executing his killer would mean another victory for the violence that Burdell sought to curb.

Peace, laughter and service are the words used over and over to describe Burdell, who was gunned down by convicted killer Ronnie Lee Gardner during a bloody escape attempt at the old Salt Lake County courthouse in 1985. "His laugh was so infectious," said Donna Nu, who was his fiancée. So infectious, in fact, she can't help laughing as she recalls the person she considers her soulmate, nearly three decades after his death. "When he laughed, there was no way I couldn't laugh," she said. "He was so willing to lighten my day. He always wanted to give more than he received, if that's possible." Now it's the memory of Burdell's generous nature that inspires Nu to plead for clemency for Gardner.

As time runs out on what may be Gardner's last days, Nu and other members of Burdell's family say he would have never wanted Gardner to die. Burdell's father, Joseph Burdell Jr., pleads for Gardner's life and remembers his son as someone "easy to get along with" — someone he says would have forgiven Gardner. "He was always laughing and joking," Joseph Burdell recalled. "Just a great person to be around." Growing up the second of 10 children, Michael Burdell got an early start helping people as he looked out for his siblings, his father said.

After serving in Vietnam, where he refused to use a weapon, Michael Burdell put himself through law school while he worked for Motorola. He met Nu, formerly Donna Gray, in Mesa, Ariz., in the mid-1970s at a local philosophical discussion group. Both had been married previously, but Nu said she has never found anyone else like Michael Burdell. "He was very inquisitive and he always tried to live his personal philosophies," she said. That inquisitive nature led both of them to the Utah-based Summum religious group, where they sought to help others as a way to personal peace.

In 1981, the couple moved to Utah to be closer to the Summum pyramid in Salt Lake City, and Michael Burdell took the name Summum Bonum Menthu Sesh. Through this group, Burdell and Nu helped grow vegetables for less-fortunate people, an act for which they received a commendation from the state Legislature. At the time, Summum founder Summum Bonum Amon Ra said Burdell had achieved the pinnacle of love in all faiths. "Michael was a Christ. He was a Krishna. He was a Buddha. He lived it," Ra said.

In Utah, Burdell worked as a defense attorney, often representing people no one else wanted to help, and usually on a pro bono basis, Joseph Burdell said. "Money never did mean much to him," Joseph Burdell said. "His goal in life was just to help people out." On the day he died, April 2, 1985, Burdell was representing an incapacitated Vietnam veteran pro bono. After his death, family and friends found that Burdell had only $5.97 in his checking account.

At his memorial service, his sister prayed for Gardner. "We ask that you would touch his life and send into his life that light which is the light of the world," she prayed. Now Nu and Joseph Burdell are asking the state not to execute Gardner, saying Michael Burdell would have personally fought against the sentence if he were alive today.

After the hearing where Gardner's execution warrant was signed, an emotional Nu said Burdell would have represented Gardner himself, had he lived to do so. "If Ronnie Lee had just wounded (Burdell), he would have defended Ronnie Lee," she said.

Deseret News

"For Nick Kirk, deputy shot in Ronnie Lee Gardner's escape attempt, attack took his life away, by Linda Thomson. (June 12, 2010 9:03 p.m.)

KEARNS — April 2, 1985, was a typical day for VelDean Kirk, who was busy with secretarial duties on the ninth floor of the Salt Lake County Sheriff's Office. People were talking. Phones were ringing. Business as usual. All that changed when commotion broke out in the courtyard below, which faced the Metropolitan Hall of Justice, and a chorus of sirens began screeching.

She and a co-worker peered out the window, struggling to obey a lock-down command for their building. "There were a jillion ambulances and police cars," Kirk said. "We couldn't stand it anymore, so we walked down."

In the courtyard, Kirk heard someone had been shot. Salt Lake County Sheriff N.D. "Pete" Hayward and his chief deputy spotted her standing there. Both men froze, spoke hastily to each other, turned to detective Dick Judd and Judd began walking. "He came toward me, and then I knew it was Nick," Kirk said. George "Nick" Kirk, her husband of 36 years and father of their five children, had been shot by prisoner Ronnie Lee Gardner during an escape attempt.

Gardner's girlfriend had smuggled a gun to him in the courthouse. He shot and killed defense attorney Michael Burdell, then bolted out despite being shackled. Gardner ran into Kirk, who was hurrying down the stairs ready to help and especially fearful for Judge James Sawaya, who was just arriving at work. Gardner's bullet ripped through Kirk's stomach, intestines, bowels, hip and leg.

Nick Kirk survived the shooting and lived for nearly 11 more years. By not dying, however, in many ways, he became the forgotten victim.

But to hear his wife tell it, nothing was the same after that day. "He was in constant pain," VelDean Kirk said. "He just never felt good. We didn't go fishing anymore because he couldn't get the boat in and out. He didn't bowl — he tried to, but he couldn't do it as well as he could before." Kirk tried golfing, but could not walk the course and had trouble playing even with a golf cart. Over time, that faded. Coaching his grandchildren's sports wore him out, so he stopped. He also walked with a limp, which became an enormous embarrassment. "It just took his life away," VelDean Kirk said.

Her husband soldiered on and tried to go back to work, despite repeated operations, chronic physical problems and emotional difficulties caused by the shooting. There also were financial and legal struggles as Kirk tried unsuccessfully to collect more than $40,000 for the mental trauma he suffered. In the end, he got only $6,000 from the County Commission. Nick Kirk died of a heart attack in 1995 at age 69, but his wife says he would be alive today if Gardner hadn't shot him.

This was not the life they had planned. The former VelDean McAllister vividly remembers the young man she met while visiting a friend's house when she was 15. He made quite an impression. "It was his looks, mainly, at first," she admits, smiling at the memory. She was in high school and he was a "body and fender man" doing auto repairs for a family-owned business as the relationship grew. She was 17 when they married in Salt Lake City. "My parents had a fit at first, but he won them over. They really started liking him," VelDean Kirk said.

Later, he joined what was termed the sheriff's office reserves, a volunteer group, and eventually became a court bailiff. He was particularly fond of Judge Sawaya, and the two socialized outside of work. Through the years, the Kirks had five children: Barbara, Michael, Mary (who died last year), Debra (who died as a baby) and Tamara.

Nick Kirk made friends easily, doted on his wife and family and relished holidays — especially Halloween. In court, he was strict and expected everyone to act respectfully. Outside of court, he chatted with everyone and had coffee with reporters. He was always active and loved the outdoors. Free time was spent fishing, hunting, boating, bowling — you name it. "When we were done with work, we would jump in the camper and go on vacation," VelDean Kirk recalls.

There was a time when VelDean would rage when Gardner's name came up. "I used to really hate him. Every time I would see his picture, I felt I could kill him with my bare hands," Kirk said. One thing that especially galled her were reports that Gardner bragged to other inmates, saying, "I shot a cop!"

Kirk believes the death penalty is appropriate for Gardner, but she said she is now free of the anger she once felt. "Maybe I've changed," said the white-haired woman while looking over family scrapbooks in the kitchen of a daughter's home. "Now I just kind of feel sorry for him. It was his choice. I think he should pay for the crimes he has committed and, since he was given the death penalty, he should go through that. It's the right punishment for him. He's taken so many lives and screwed up so many lives." Kirk has been invited to witness Gardner's execution by firing squad. She'll be there, but said she is not seeking revenge. "I want closure on it," she said. "I think that's the only way I'll get it."

When her husband was alive, he supported Gardner being executed. "He had been in the courts long enough to know they need to pay for their crimes." To this day, there is one thing about Gardner that perplexes VelDean. "I would like to know why he shot Nick because he knew Nick," she said. "He'd been in court several times, and he knew Nick didn't have a gun." In those days, public buildings were far less secure: Bailiffs did not have guns or even radios for communication.

Today, VelDean Kirk enjoys her family and focuses mainly on the good memories of her late husband, although regrets sometimes creep in. "He loved life, even though he had health problems from the shooting. He loved the kids and grandkids," she said. "There are 13 great-grandchildren, and he's missed out on 10. … If he were alive today, he probably would still be bowling with the judge. And me, too, naturally."

Amnesty International

Document - USA: First execution in 11 years scheduled in Utah: Ronnie Lee Gardner
UA: 113/10 Index: AMR 51/039/2010 USA Date: 12 May 2010

URGENT ACTION:

Ronnie Lee Gardner, a 49-year-old man, is due to be executed by firing squad in the US state of Utah on 18 June. Condemned to death for killing a lawyer during an escape attempt in 1985, he has been on death row for almost a quarter of a century. The last execution in Utah was in 1999.

On 2 April 1985, 24-year-old Ronnie Gardner was being led into a court building in Salt Lake City for a hearing on a second degree murder charge when a female accomplice handed him a gun. An exchange of gunfire with guards ensued, during which Ronnie Gardner was shot in the chest. Wounded, he entered the archives room, inside which was a court clerk, a prison officer, and three lawyers. He fatally shot one of the lawyers, Michael Burdell, before fleeing the room and the building. He was surrounded by police in the car park, and surrendered. He was tried in October 1985 and sentenced to death for the first-degree murder of Michael Burdell.

After holding an evidentiary hearing in November 1990, a state court judge ruled in 1991 that Ronnie Gardner had been denied adequate legal representation at the sentencing stage of his trial, including as a result of the defence counsel's failure to investigate and present mitigating evidence to the jury. He ordered a new sentencing hearing. However, the Utah Supreme Court overturned the decision, ruling that errors by the lawyers had not been shown to have prejudiced Ronnie Gardner's trial. The state had denied Gardner funding to retain expert witnesses, but he received this funding once the case went into the federal courts.

Mitigating evidence not fully provided to the jury was presented to the federal courts, relating to Ronnie Gardner's deprived and abusive background, together with expert neurological and psychiatric evidence of organic brain damage resulting in cognitive and intellectual deficits and impulse control problems. In 2009, the US Court of Appeals for the 10th Circuit noted that "it is undisputed that Mr Gardner’s childhood was troubled in many respects," and added that "reasonable minds may differ on the likely impact on the jury of more thoroughly researched mental health testimony." However, noting that the question before it when applying the deference due to state court decisions by federal courts under US law was "not whether the Utah Supreme Court was correct but whether its judgment was unreasonable." The 10th Circuit panel concluded that it was not unreasonable.

On 4 May 2010, lawyers filed a clemency petition to the Utah Board of Pardons and Parole requesting that the death sentence be commuted to life imprisonment. They have submitted declarations from those close to Michael Burdell, including his fiancée and his 86-year-old father, who maintain that he would not have wanted Ronnie Gardner to be put to death. The Board has not yet said whether it will hold a clemency hearing.

PLEASE WRITE IMMEDIATELY in English or your own language, in your own words:

•Explaining that you are not seeking to excuse the killing of Michael Burdell;

•Expressing concern that the trial jury did not hear full evidence of Ronnie Lee Gardner's deprived and abusive childhood, and noting further evidence raised since the trial of brain damage and its possible effects on his conduct;

•Noting that Ronnie Gardner has spent 25 years on death row, in itself effectively a life sentence, and a fact that further undermines any assertion by the state that retribution or deterrence will be served by this execution;

•Welcoming the support for clemency from friends and family of Michael Burdell;

•Calling on the Board to hold a clemency hearing, and for Ronnie Gardner’s death sentence to be commuted.

PLEASE SEND APPEALS BEFORE 18 JUNE 2010 TO Utah Board of Pardon and Parole

State v. Gardner, 789 P.2d 273 (Utah 1989). (Direct Appeal)

Defendant was convicted of first-degree murder, attempted first-degree murder, aggravated kidnapping, escape, and possession of dangerous weapon by incarcerated person, in the Third District Court, Salt Lake County, Jay E. Banks, J., and defendant appealed. The Supreme Court, Howe, Associate C.J., held that: (1) failure to grant change of venue did not deprive defendant of fair trial; (2) admission of prior convictions as element of crime of first-degree murder did not deprive defendant of fair trial; (3) trial court's cutting off defendant's recross-examination of witness did not violate his right to confrontation; (4) evidence was sufficient to convict defendant of first-degree murder; and (5) prosecutor did not engage in misconduct. Affirmed. Stewart, J., filed concurring opinion. Zimmerman, J., filed concurring opinion in which Durham, J., concurred.

HOWE, Associate Chief Justice:

Defendant appeals his convictions of first degree murder, Utah Code Ann.FN1 § 76-5-202(1)(c), (e), & (h); attempted first degree murder, § 76-5-202(1)(e), (h), & (k); aggravated kidnapping, § 76-5-302(1)(a), (b); escape, § 76-8-309; and possession of a dangerous weapon by an incarcerated person, § 76-10-503(2). FN1. All statutes cited are to Utah Code Annotated (1953).

The charges stem from an incident that occurred on April 2, 1985. Defendant was being transported from the maximum security unit of the Utah State Prison to the Metropolitan Hall of Justice in Salt Lake City to appear at a hearing on a second degree murder charge. As he entered the basement lobby of the Hall, he was handed a gun by a female accomplice. He fumbled with the unfamiliar weapon; his guards retreated to the parking lot. Gunfire was exchanged, and defendant was shot in the shoulder. He entered an archives room, looking for a way out of the building. There he encountered a court clerk, a prison officer, and three attorneys. Two of the attorneys sought refuge behind the office door. Defendant turned on them, pointed the gun at one and then the other, and fired, killing attorney Michael Burdell.

The prison officer, Richard Thomas, was forced to lead defendant out of the archives room to a stairwell leading to the second floor. As defendant crossed the lobby, Nick Kirk, a uniformed bailiff, came down the stairway to investigate the disturbance. Defendant shot and seriously wounded Kirk and then proceeded up the stairs. On the next floor, defendant encountered Wilburn Miller, a vending machine serviceman, and forced him to accompany defendant outside of the building. As defendant stepped outside, Miller broke free and dived through a teller's window inside the building. Once outside, defendant, wounded, shackled, and surrounded by police, threw down his gun and surrendered.

Defense counsel filed pretrial motions seeking a change of venue, recusal of the trial judge, and a prohibition on evidence of other crimes committed by defendant. The first two motions were denied. The third was granted with the understanding that some evidence of prior crimes was necessary to prove elements of the offenses charged and other evidence of defendant's past record would be admissible as impeachment if defendant took the stand.

At trial, the defense moved for a mistrial based on the amount of security in the courtroom. The motion was denied, and the four plainclothes guards and defendant were directed to remain seated until the jury left the courtroom. The prison officer who had led defendant to the stairwell had made a pretrial statement that defendant was “glassy-eyed.” However, on direct testimony, he characterized defendant as “being all there.” After the defense had brought out the previous statement on cross, the trial court stopped both counsel from going back over that aspect of the testimony on recross, stating, “I think it has been developed by both of you as to what was said.”

On cross-examination, defendant denied having a conversation with Wayne Jorgensen, a prison officer assigned to guard him while he recovered at the hospital. On rebuttal, the prosecution called Jorgensen, who recounted the content of his conversation with defendant. While no objection was raised at trial, defendant now contends that the statements were taken without benefit of a Miranda warning and violated his fifth and sixth amendment rights.

During the penalty phase of the trial, defendant, in an attempt to give the jury a basis on which to assess the proportionality of the penalty which should be imposed, sought the admission of affidavits of attorneys who had been involved in other capital homicide cases. The court refused to admit the affidavits. It also declined to accept testimony by associates of the victim regarding their opposition to the death penalty.

At the close of the penalty phase, defendant moved for a mistrial on the basis of prosecutorial misconduct. The motion was denied. The jury, which had previously returned a verdict of guilty on all counts, sentenced defendant to death. He appeals.

I. Change of Venue

Defendant contends that the trial court abused its discretion in denying him a change of venue. He maintains that due to extensive pretrial publicity and the fact that his trial was held in the county courthouse across the street from the Hall, it was impossible for him to receive a fair trial in Salt Lake County.

Due process requires that the accused receive a trial before a fair and impartial jury, free from outside influences. State v. Pierre, 572 P.2d 1338, 1348 (Utah 1977), reh'g denied, 576 P.2d 857 (Utah 1978), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978); Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755 (1961). The fact that a case is prominently reported in the news media, standing alone, does not presumptively deprive a defendant of due process. State v. Pierre, 572 P.2d at 1349. Defendant points to the fact that nearly all of the prospective jurors had been exposed to at least the fundamental facts of the incident. However, neither does that exposure presumptively deprive a defendant of due process. Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 594 (1975). In examining the news reports in evidence and more than 700 pages of transcript of the voir dire, it is apparent that the news reports did not infect the minds of jurors with any prejudice or bias against defendant. The following comment was made by a juror at voir dire: “I don't recall them [the media] giving any details involving the case that we haven't already discussed, that the judge didn't talk about on the initial day we came in.” This is indicative of the impression the media reports made on the prospective jurors. They were aware of the basic circumstances, that is, someone had handed defendant a gun, one person was killed, and defendant and another person were injured. Such knowledge was not prejudicial in any way to defendant, however, because these basic facts were not disputed or placed at issue by defendant and were established through his own direct testimony.

Defendant carries the argument one step further and argues that not only was knowledge of the incident widespread in the community, but there was a common belief that he was guilty, which precluded any possibility of his obtaining a fair trial in the jurisdiction. In support, defendant took a telephone poll of 400 registered voters in Salt Lake County. (Jury lists are drawn from registered voters.) He asserts that the poll showed that 78 percent thought that defendant was guilty and 12 percent thought that he was probably guilty. The results of the survey are misleading in several aspects. First, only 23 percent of those surveyed could identify defendant as the person involved in the incident. Second, when asked if he was “guilty,” no explanation was given of the charges. Therefore, any lay opinion as to guilt was merely an affirmation that he was the person involved in the incident, a fact conceded by the defense. This is typified by the following comment from a potential juror on voir dire: “From the news accounts you just, you know, it kind of shows that he was there and he did it, but, you know, I don't know that I sat and thought ‘He is guilty.’ ”

We subscribe to the following: To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1642. Each one in the pool of prospective qualified jurors stated under oath and rather candidly that he or she could meet this standard.

Defendant contends that the proximity of the trial to the scene of the crime also required a change of venue. However, he does not contend that there were any unauthorized jury views of the scene, nor does he identify any specific prejudice. The trial was moved from the Hall to a separate building and courtroom. The danger that any prejudice would result because the trial was held at that location was not so great that a change of venue was required. Having carefully reviewed the record, we cannot say that a change of venue was necessary to insure defendant a fair and impartial jury. Denial of a change of venue was not an abuse of discretion. See State v. Bishop, 753 P.2d 439, 459 (Utah 1988).

II. Recusal

Defendant filed an affidavit of bias and prejudice against the trial judge because he worked in the Hall. On appeal, defendant does not allege any actual bias but argues that a trial judge should recuse himself where there is an appearance of bias. We agree. The canons of judicial ethics state that a judge should disqualify himself where his impartiality might reasonably be questioned. Code of Judicial Conduct Canon 3(C)(1) (1972). If the allegations in the affidavit are true and they would give a reasonable person cause to doubt whether the judge could be impartial under the circumstances, he should recuse himself. Nothing is more damaging to the public confidence in the legal system than the appearance of bias or prejudice on the part of the judge. However, though we share defendant's statement of the controlling rule, we do not agree that the failure of the trial judge to recuse himself in the instant case requires reversal. The Code of Judicial Conduct establishes standards that, if violated, may subject a judge to discipline. However, it does not establish the parameters of a defendant's constitutional right to a fair trial. State v. Neeley, 748 P.2d 1091, 1094 (Utah 1988); Harvell v. State, 742 P.2d 1138, 1140 (Okla.Crim.App.1987); State v. Wixon, 30 Wash.App. 63, 69, 631 P.2d 1033, 1038 (1981).

Failure of a trial judge to recuse even where he should have, based on the appearance of possible bias or prejudice, does not require reversal unless the “substantial rights of the party are affected.” Utah R.Crim.P. 30. The test for harmless error under the just-quoted language from rule 30 is whether “there was a reasonable likelihood of a more favorable result for the defendant.” State v. Hutchison, 655 P.2d 635, 637 (Utah 1982); State v. Knight, 734 P.2d 913, 918-20 (Utah 1987). No allegation of actual prejudice was made, nor does our careful review of the record reveal any basis for such an allegation. In the absence of any showing of actual prejudice to defendant, any error of the trial judge in failing to recuse was harmless.

III. Constitutionality of the Death Penalty

Defendant raises several challenges to the constitutionality of Utah's capital sentencing scheme, § 76-3-207 (1978, 1988 Supp.). Briefly, his contentions are (1) the sentencing scheme does not narrow the class of offenders to which the death penalty applies, as required by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, reh'g denied, 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 163 (1972); (2) the death penalty violates state and federal due process and equal protection provisions; (3) section 76-3-207 is overbroad and vague; and (4) the death penalty violates article I, section 9 of the Utah Constitution and the ban on cruel and unusual punishment contained in the eighth amendment of the United States Constitution.

These challenges to Utah's death penalty and sentencing scheme were thoughtfully and carefully considered in State v. Wood, 648 P.2d 71 (Utah (per curiam), cert. denied, 459 U.S. 988, 103 S.Ct. 341, 74 L.Ed.2d 383 (1982); Andrews v. Morris, 607 P.2d 816, 823-24 (Utah), cert. denied, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980); Pierre v. Morris, 607 P.2d 812, 814-15 (Utah), cert. denied, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980); State v. Andrews, 574 P.2d 709, 710 (Utah 1977), reh'g denied, 576 P.2d 857 (Utah), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978); State v. Codianna, 573 P.2d 343, 348 (Utah 1977), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978); State v. Pierre, 572 P.2d 1338, 1345-46, 1356 (Utah 1977), reh'g denied, 576 P.2d 857 (Utah 1978); see Andrews v. Morris, 677 P.2d 81, 83-84 (Utah 1983). Most of these claims have also been treated by the U.S. District Court for the District of Utah and the Tenth Circuit Court of Appeals. Andrews v. Shulsen, 600 F.Supp. 408 (D.Utah 1984), aff'd, 802 F.2d 1256 (10th Cir.1986), cert. denied, 485 U.S. 919, 108 S.Ct. 1091, 99 L.Ed.2d 253, reh'g denied, 485 U.S. 1015, 108 S.Ct. 1491, 99 L.Ed.2d 718 (1988); Selby v. Shulsen, 600 F.Supp. 432 (D.Utah 1984), aff'd sub nom. Pierre v. Shulsen, 802 F.2d 1282 (10th Cir.1986), cert. denied, 481 U.S. 1033, 107 S.Ct. 1964, 95 L.Ed.2d 536 (1987), reh'g denied, 483 U.S. 1012, 107 S.Ct. 3246, 97 L.Ed.2d 750 (1987). Since the reasoning of the above-cited cases is sound and persuasive on the issues defendant now urges upon this Court, we find it unnecessary to repeat that analysis in this opinion. We hold that the death penalty as applied under our statutory scheme is in accordance with the requirements of the Constitution of the United States and the Constitution of the State of Utah. State v. Bishop, 753 P.2d 439, 460 (Utah 1988); State v. Tillman, 750 P.2d 546, 572 (Utah 1987).

IV. Use of Prior Violent Felony as an Aggravating Circumstance

Defendant asserts that section 76-5-202(1)(h) denies his right to due process as guaranteed by the fifth and fourteenth amendments to the United States Constitution and by article I, section 7 of the Utah Constitution. That section provides:

(1) Criminal homicide constitutes murder in the first degree if the actor intentionally or knowingly causes the death of another under any of the following circumstances: .... (h) The actor was previously convicted of first or second degree murder or of a felony involving the use or threat of violence to a person.

He contends that allowing the admission of two of his prior convictions in the guilt phase of the trial was unfairly prejudicial because the jury, upon learning of his other convictions, was prone to convict him because of his “bad character.” We do not agree that evidence of his two prior convictions had any prejudicial effect.

The facts surrounding the incident out of which the instant case arises are intertwined around the basic fact that defendant was attempting to escape from lawful prison custody; thus, it was not possible to present to the jury any picture of the factual setting without revealing at least one of defendant's prior convictions. The aggravating circumstance required by section 76-5-202(1)(h) was proven by entering into evidence copies of defendant's commitments to the Utah State Prison on robbery charges. However, no attempt was made thereafter to try defendant on the basis of his “bad character.” Throughout the remainder of the trial, the prosecution only referred to the prior convictions as they related to the elements of the crimes charged. Defendant took the stand and disclosed his extensive criminal record in his direct testimony. He revealed other convictions that were potentially more prejudicial, including aggravated assault and aggravated assault on a prison guard. He stipulated to the introduction of the evidence challenged here.

Because defendant's guilt was manifest by overwhelming direct evidence, we cannot say that the inclusion of his prior convictions as an element of the crime of first degree murder had any unfair prejudicial effect on the conduct or outcome of his trial. Since we find that application of section 76-5-202(1)(h) did not violate his right to due process in the instant case, we reserve ruling on the constitutionality of that section. We also briefly note that application of that section is not essential to defendant's conviction of first degree murder since the jury also unanimously found two additional aggravating circumstances upon which the conviction of first degree murder rests, namely, creating a great risk of death to a person other than the victim and committing a homicide for the purpose of effecting defendant's escape from lawful custody. § 76-5-202(1)(c), (e).

We find no merit in defendant's contention that the same aggravating circumstance cannot be relied upon in the guilt phase and in the penalty phase. Lowenfield v. Phelps, 484 U.S. 231, 241, 108 S.Ct. 546, 553, 98 L.Ed.2d 568, 579 reh'g denied, 485 U.S. 944, 108 S.Ct. 1126, 99 L.Ed.2d 286 (1988).

V. Challenge for Cause

Defendant contends that he was improperly denied a challenge for cause. We have held it to be prejudicial error where a peremptory challenge is used to remove a prospective juror who should have been excused for cause. State v. Brooks, 631 P.2d 878, 884 (Utah 1981). Defendant asserts that Mr. Copinga, a prospective juror, should have been excused for cause because he expressed a personal preference for the death penalty. In State v. Norton, 675 P.2d 577, 589 (Utah 1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1923, 80 L.Ed.2d 470 (1984), overruled on other grounds, State v. Hansen, 734 P.2d 421 (Utah 1986), we stated:

Persons who cannot vote for the imposition of capital punishment in any circumstances and persons who feel compelled to vote for the imposition of capital punishment in all circumstances of murder are properly excluded for cause. The proper test of legal partiality is whether a juror's views about capital punishment would prevent or substantially impair him or her from conscientiously taking the juror's oath and performing his or her duties as a juror by following the court's instructions on the law of capital punishment and applying them to the facts of the particular case. Cf. Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589 (1980).

Mr. Copinga stated that he did not have any strong commitment one way or the other on the death penalty. He only stated his personal preference that he would rather die than spend the rest of his life in confinement. He said that he would apply the law strictly according to the evidence and that when it came to imposing the penalty, he was not leaning more toward either life in prison or death. He considered life in prison a very severe punishment. When properly informed of the bifurcated nature of the proceeding and that the aggravating circumstances must outweigh the mitigating circumstances, he was asked, “In the penalty phase, if you found that those requirements were not met, could you vote for life?” He answered, “If it was that clear-cut, I don't think there would be any problem.”

The defense withdrew his challenge, and the judge made no ruling. Defendant nevertheless now contends that the judge should have excused Copinga on the court's own motion and that the failure to do so was an abuse of discretion constituting “manifest and prejudicial error.” State v. Tillman, 750 P.2d at 553. A review of the entire voir dire reveals that Copinga's views on capital punishment would not impair his ability to decide the case according to the law as instructed. Therefore, under the standard enunciated in Norton, dismissing him for cause was not required.

VI. Court Security

Defendant contends that excessive security was used in the courtroom, which adversely affected his right to a fair trial. We find no merit to this contention. Four unarmed plainclothes guards were present at trial: two sat behind defendant, and two were stationed elsewhere in the courtroom. At the noon recess on the second day of trial, defendant moved for a mistrial, claiming that excessive security in the courtroom gave the jury the impression that he was a dangerous man. The trial judge denied the motion but instructed defendant and the security guards to remain seated until the jury had left the courtroom. Previously, one or two guards had stationed themselves between the jury and defendant when court recessed. Throughout the remainder of the trial, the guards remained seated until the jury left the courtroom.

This case is unlike cases cited by the defense where the defendant was tried in prison garb and shackles. See People v. Duran, 16 Cal.3d 282, 127 Cal.Rptr. 618, 625, 545 P.2d 1322, 1329 (1976). The security was even less intrusive than that in Holbrook v. Flynn, 475 U.S. 560, 572, 106 S.Ct. 1340, 1348, 89 L.Ed.2d 525, 537 (1986), where the Court held that it was not prejudicial for four armed, uniformed state troopers to occupy the seats immediately behind the defendant. The trial court, in allowing the extra security, was protecting a legitimate state interest in maintaining custody of the defendant since he was still under sentence from prior convictions and was being held without bail. Id. at 572, 106 S.Ct. at 1347, 89 L.Ed.2d at 536. The additional security measures in the instant case were prudent since defendant was on trial for events that occurred in an aborted escape during a court appearance, and they were accomplished through the least obtrusive methods available. When defendant complained of the action of the guards, measures were immediately taken to obviate any potential prejudicial effect. We find that no undue prejudice was occasioned by the security employed at trial.

VII. Cross-Examination of Richard Thomas

Defendant contends that his sixth amendment right to confrontation was abridged when the trial court cut off his recross-examination of Richard Thomas. The right to cross-examine is an invaluable right embodied in article I, section 12 of the Utah Constitution and the sixth amendment of the United States Constitution. State v. Maestas, 564 P.2d 1386, 1387 (Utah 1977). However, “the extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted.” Smith v. Illinois, 390 U.S. 129, 132, 88 S.Ct. 748, 750, 19 L.Ed.2d 956, 959 (1968) (citing Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624, 629 (1931)). In reviewing defendant's claim, we look to see if the trial court abused its discretion in limiting cross-examination and, if so, if the result was prejudicial to him. State v. Maestas, 564 P.2d at 1388.

Some six months prior to trial, Thomas gave a recorded statement concerning the shooting. At trial, he testified on cross-examination that he did not recall certain questions that were asked him when he gave the statement or his answers. He was then given a transcript of the statement, after which he recalled stating that he had characterized defendant as being glassy-eyed at the time of the shooting. He again repeated the earlier statement on redirect. After he was asked again on recross about his previous statement, the trial court stated, “I am going to cut it off on both sides. It has been developed by both of you as to what was said.”

Both counsel had the opportunity to question the witness about the previous statement; the contents of the statement were repeated several times; and the transcript was placed into evidence. Defendant was on recross-examination and had covered the points brought out by the prosecution on redirect. At the time the court cut off that line of questioning, defendant was repeating points asked and answered on cross-examination. While we agree that broad latitude should be afforded a defendant on cross-examination, the trial court did not abuse its discretion by cutting off the repetitive questioning at this point.

VIII. Testimony of Officer Jorgensen

Defendant testified at trial that after he was shot, he was in a daze, his eyes were out of focus, objects before him were blurred, and his ears were ringing. Consequently, he claimed to be unable to recall much of what happened after he was shot. On rebuttal, the State, in an attempt to impeach defendant through his prior inconsistent statements, called as a witness Officer Jorgensen, a prison officer assigned to guard defendant while he was recuperating in the hospital. Jorgensen related statements and admissions made by defendant to him in a conversation which they allegedly had in the hospital which indicated that defendant was fully aware of what he was doing as he attempted to find his way out of the Hall and escape. Defendant denied that the conversation ever took place and contends that the testimony of Officer Jorgensen contained statements allegedly made by defendant in a custodial interrogation without the benefit of Miranda, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (requiring that defendants be informed of their right to counsel and right to remain silent prior to custodial interrogation), and without the benefit of counsel in violation of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

While we will address issues when reviewing a death penalty which were briefed on appeal but were not properly objected to below, State v. Tillman, 750 P.2d at 552, we need not reach the merits of defendant's alleged Miranda violation. Even assuming the statements were taken in violation of Miranda and Massiah, they were offered on rebuttal only for purposes of impeachment and as such are admissible. United States v. McManaman, 606 F.2d 919, 924-25 (10th Cir.1979); State v. Walker, 138 Ariz. 491, 675 P.2d 1310, 1314 (1984); Lemasters v. People, 678 P.2d 538, 542-43 (Colo.1984); State v. Cartwright, 200 Mont. 91, 650 P.2d 758, 763 (1982); State v. Holland, 98 Wash.2d 507, 520, 656 P.2d 1056, 1063 (1983); State v. Mills, 76 Or.App. 301, 710 P.2d 148, 149-50 (1985).

Defendant asserts that the failure to instruct the jurors as to the limited use they could make of the statements was “manifest error,” requiring reversal of his conviction. We disagree. No objection was made to the introduction of Jorgensen's testimony. The issue of whether the statements were taken in violation of Miranda and were admissible only for impeachment was not raised at trial; even so, the evidence was offered on rebuttal only for that limited purpose. Thus, when the evidence was received, the jury was faced only with deciding whether Jorgensen or defendant was telling the truth. After the testimony was offered and received for this purpose and counsel had the opportunity to assess its potential impact on the jury, no limiting instruction was requested. No exception was taken to note the absence of any limiting instruction. Given the nature of the testimony, the State's objective in offering it, and the manner in which it was received into evidence, we cannot say that there was manifest error in the failure of the trial court to give a limiting instruction sua sponte.

IX. Manslaughter Instruction

Defendant contends that the court erred in instructing the jury regarding the lesser offense of manslaughter. His theory of the case on which he relied to support the giving of the manslaughter instruction was that from the time his accomplice handed him a loaded gun, or at least from the time he was shot in the shoulder, he was acting under an “extreme emotional disturbance.”

Section 76-5-205 provides: (1) Criminal homicide constitutes manslaughter if the actor: .... (b) causes the death of another under the influence of extreme emotional disturbance for which there is a reasonable explanation or excuse.

Although our statute differs in some respects from the model penal code version on which it was based, the official comments to the model code are applicable in determining when an emotional disturbance is excusable. On the subject, the drafters of the model code offered the following insight: [A]n emotional disturbance is excusable “if it is occasioned by any provocation, event or situation for which the offender was not culpably responsible.” Under this formulation, extreme emotional disturbance will not reduce murder to manslaughter if the actor has intentionally, knowingly, recklessly, or negligently brought about his own mental disturbance, such as by involving himself in a crime. Model Penal Code § 210.3 (official draft & revised comments, 1980, Part II, at 64 (emphasis added; citation omitted) (quoting the National Commission on Reform of Federal Criminal Law, Brown Commission Final Report 1602(b))).

This comment coincides with instruction No. 34 given by the trial court, which read:

INSTRUCTION NO. 34 For Manslaughter to apply, the “extreme mental or emotional disturbance” must be triggered by something external from the accused, and his reaction to such external stimulus must be reasonable, and the terms must be given the meaning you would give them in common everyday use. Such disturbance therefore cannot have been brought about by the defendant's own peculiar mental processes or by his intentional knowing or reckless acts. Extreme” means excessive, or far advanced, or grievous. Mental” means relating to or existing in the mind. Disturbance” refers to a state of being disturbed, agitated, disordered, or distressed. Emotional” pertains to emotions and has to do with feelings or passions.

In determining whether or not the defendant acted under the influence of extreme mental or emotional disturbance, you should consider all of the circumstances surrounding the death of the victim. If you find that the defendant, Ronnie Lee Gardner, caused the death of Michael Joseph Burdell, while under the influence of extreme mental or emotional disturbance, you must next determine whether or not there was a reasonable explanation or excuse for such disturbance. The reasonableness of the explanation or excuse for the extreme mental or emotional disturbance is to be determined from the viewpoint of a reasonable person under the then existing circumstances. (Emphasis added.)

Although a majority of this Court rejected portions of a similar instruction given in State v. Bishop, 753 P.2d at 472, any error here was harmless. The triggering event according to defendant's theory of the case was his escape attempt in which he was wounded. Thus, defendant's “emotional disturbance” was a product of “his knowingly or intentionally involving himself in the commission of a crime” and could not be “excusable.” Therefore, any error in the instruction FN2 given was harmless. FN2. We also note, as we stated in State v. Gallegos, 16 Utah 2d 102, 104-05, 396 P.2d 414, 415-16 (1964), and State v. Valdez, 30 Utah 2d 54, 58, 513 P.2d 422, 424 (1973), that generally an error in a manslaughter instruction where the jury finds an intentional killing is not prejudicial. State v. Bishop, 753 P.2d at 472 (Durham, J., concurring).

X. Oral Instruction

Defendant contends that the trial court erred in giving an oral instruction sua sponte. He argues that the instruction had the effect of precluding the jurors from considering any of the lesser included offenses until they were unanimous in acquitting him of first degree murder.

The trial judge, in giving instruction 27 on first degree murder, added the following oral clarification to the written instruction: With reference to count I, you determine his guilt or innocence of capital homicide, murder in the first degree. If that is your verdict, then you don't have to further consider the included offenses within count I. As you can see, if you start from the bottom and work up, them [sic] being included offenses, you will find any more or all of those to exist, so you start at the top under count I, and work down as I have instructed you in the last sentence. If you find him not guilty of murder in the first degree, you shall then consider the guilt or innocence of the defendant of the lesser included offense of capital homicide, murder in the second degree.

In State v. Clayton, 658 P.2d 624, 627 (Utah 1983), we held that it was not error for the trial court to direct the jury to begin by determining whether the defendant was guilty of the charged offense. However, we believe that it would be well to do this by means of suggestion rather than an absolute direction. So held the Supreme Court of Michigan in People v. Mays, 407 Mich. 619, 623, 288 N.W.2d 207, 208 (1980) (per curiam). There, the court stated:

It is not error to suggest an order of consideration of offenses. The judge may suggest to the jury that it consider the charged offense first and it would be helpful to suggest that consideration be given to offenses with a “greater” number of elements before considering those with a “lesser” number. In that case, the court set out the following suggested instruction which may be given, making it clear that such an instruction is not mandatory:

You may give consideration to all the possible verdicts, but you should begin your deliberations by considering (the charged offense). Unless all of you agree to find the defendant guilty of (the charged offense), you may consider the other offenses upon which I have instructed you in the order in which the instructions were given. You may consider any of those offenses without having reached agreement concerning the defendant's guilt or innocence on any other of them. The purpose of this instruction is to aid and not to control your deliberation. People v. Mays, 288 N.W.2d at 208, n. 1.

Although the oral instruction given in the instant case is not a model of clarity, we do not find that it demands or even implies the need for a unanimous vote of acquittal before the jury may consider lesser included offenses. However, in order to avoid any possible misunderstanding by the jurors, it would be well in the future to avoid instructing them that they must find the defendant not guilty of the charged offense before they may consider lesser included offenses. Instead, they may be instructed that they should consider the lesser included offenses if they do not find the defendant guilty of the charged offense. While the difference in wording is subtle, it avoids any possible misunderstanding that the jury must, by a unanimous vote, acquit the defendant on the charged offense before it may consider the lesser included offenses. The oral instruction given in the instant case, when read in connection with other written instructions given the jury, could not have reasonably created any confusion. Instruction No. 48 required a unanimous vote to convict. Instruction No. 15 stated: “If you find that the defendant in this case has committed a criminal homicide but you have a reasonable doubt as to which of two or more degrees of that crime he is guilty, you must convict him of the lowest degree only.” These instructions, when read as a whole as we must, gave defendant the full benefit of the reasonable doubt standard and allowed the jury to give proper consideration to the lesser included offenses.

XI. Directed Verdict/Sufficiency of the Evidence

At the close of the prosecution's case in chief, defendant moved the court to direct a verdict of either depraved indifference second degree murder or manslaughter. His motion was denied.

At the close of the prosecution's evidence, the court may dismiss a charge if the evidence presented is not legally sufficient to establish the elements of the offense. Utah R.Crim.P. 17( o). Here, the prosecution presented evidence that defendant shot and killed Michael Burdell under circumstances from which the jury could infer that his act was either knowing or intentional. Evidence was also presented on the aggravating factors which elevate the crime to first degree murder. Having established a prima facie case by presenting evidence on each element of the offense, the prosecution was entitled to have the charge submitted to the jury. There was no error in denying defendant's motion for a directed verdict.

In reviewing a jury verdict to determine if it was based on sufficient evidence, we view the evidence presented and all inferences that can be drawn therefrom in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. McClain, 706 P.2d 603, 605 (Utah 1985). Where there is any evidence, including reasonable inferences that can be drawn from it, from which findings of all the elements of the crime can be made beyond a reasonable doubt, our inquiry is complete and we will sustain the verdict. McClain, 706 P.2d at 605; see also Jackson, 443 U.S. at 326, 99 S.Ct. at 2792-93, 61 L.Ed.2d at 578.

Viewed in the light most favorable to the verdict, the observations of the witnesses to the shooting, as well as defendant's actions prior to, during, and following the shooting, comprised sufficient, competent evidence that defendant acted knowingly or intentionally in causing the death of Michael Burdell. We find therefore that there was sufficient evidence to sustain the verdict.

XII. Presentation of Aggravating/Mitigating Factors in the Penalty Phase

Defendant contends that the trial court erred in admitting, in aggravation of the penalty, evidence of a previous homicide he had committed. Section 76-3-207(2) provides in relevant part: (2) In these sentencing proceedings, evidence may be presented as to any matter the court deems relevant to sentence, including but not limited to the nature and circumstances of the crime, the defendant's character, background, history, mental and physical condition, and any other facts in aggravation or mitigation of the penalty. Any evidence the court deems to have probative force may be received regardless of its admissibility under the exclusionary rules of evidence.... Aggravating circumstances shall include those as outlined in 76-5-202.

Defendant argues that since the language of the first degree murder statute, section 76-5-202(1)(h), refers to “previous convictions” FN3 of first or second degree murder, the State was precluded from putting on evidence of the prior homicide in the penalty phase of his trial since he did not plead guilty to the prior crime until after the commission of the offense in the instant case but prior to trial. In support, defendant cites People v. Balderas, 41 Cal.3d 144, 222 Cal.Rptr. 184, 216-18, 711 P.2d 480, 513-14 (1985), for the proposition that convictions prior to the commission of the offense indicate that the defendant was undeterred by the prior conviction, but that convictions postdating the incident were not relevant for that purpose.

FN3. In State v. Lafferty, 749 P.2d 1239, 1260 (Utah 1988), we held that evidence of other violent crimes which have not resulted in convictions is admissible as aggravation of the penalty, subject to a finding by the fact finder beyond a reasonable doubt as to the defendant's guilt of those other crimes. Defendant's reasoning is not sound. Balderas deals with admission of convictions of prior nonviolent felonies. Even under the California sentencing scheme, there is no such limitation placed on the use of violent crimes. Id., 222 Cal.Rptr. at 217, 711 P.2d at 514. The violent nature of the crimes makes them relevant to the defendant's character, which is a key focus of the sentencing proceeding.

Aggravating circumstances under section 76-3-207 include, but are not limited to, those listed in section 76-5-202. Evidence of other aggravating factors is not prohibited “as long as that information is relevant to the character of the defendant or the circumstances of the crime.” Barclay v. Florida, 463 U.S. 939, 967, 103 S.Ct. 3418, 3433, 77 L.Ed.2d 1134, 1154 (1983) (citing Zant v. Stephens, 462 U.S. 862, 878-79, 103 S.Ct. 2733, 2743-44, 77 L.Ed.2d 235, 250-51 (1983)). The prior homicide was relevant to defendant's character, background, and history and was admissible under the plain language of section 76-3-207, even though it had not yet resulted in a conviction at the time of the shooting in the instant case.

Defendant also contends that the trial court erred in not admitting certain evidence in mitigation of the penalty. He offered affidavits of attorneys who had appeared as counsel in other capital homicide cases. The affidavits briefly summarized the facts and sentences given in those cases. They were offered to provide the jury with a basis on which to determine the “nature” of defendant's crime. Defendant also offered testimony of associates of the victim regarding their opposition to the death penalty.

The nature of defendant's crime was fully explored and presented to the jury, as were the attendant circumstances. Comparison with other homicide cases presented in capsulized form would shed no further light on defendant's crime, but would instead encourage the jury to consider information extraneous to defendant's character and the circumstances of his offense. In Williams v. State, 445 So.2d 798, 815 (Miss.1984), cert. denied, 469 U.S. 1117, 105 S.Ct. 803, 83 L.Ed.2d 795 (1985), the Mississippi Supreme Court upheld the exclusion of psychological testimony comparing the defendant with the typical killer. It held that while the defendant was entitled to testimony regarding his character, the trial court was not required to allow evidence concerning the characters of other capital murder defendants. Likewise, in the instant case, the court was not required to admit the affidavits capsulizing the facts and sentences given in other homicide cases. As stated by the United States Supreme Court in Lockett v. Ohio, 438 U.S. 586, 604 n. 12, 98 S.Ct. 2954, 2965 n. 12, 57 L.Ed.2d 973, 990 n. 12 (1978), “Nothing in this opinion limits the traditional authority of the court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense.” Our statutory scheme gives the trial judge discretion to admit “any matter the court deems relevant to sentence.” § 76-3-207(2). The court's decision to exclude the affidavits is not contrary to our statutory requirements or the guidelines set down by the United States Supreme Court, nor was it an abuse of discretion.

The testimony offered regarding the opposition of the victim's associates to the death penalty was likewise properly excluded as irrelevant to the character of the accused or the nature of the crime. In State v. Norton, 675 P.2d 577, 588 (Utah 1983), we stated that allowing the defendant to present any evidence in mitigation of his crime was “not intended to turn a sentencing proceeding into a forum to consider the appropriateness of capital punishment in general.” The United States Supreme Court, in Booth v. Maryland, 482 U.S. 496, 503-504, 107 S.Ct. 2529, 2533, 96 L.Ed.2d 440, 448 (1987), held that victim impact statements were not relevant to the sentencing proceeding and tended to shift the focus away from the character of the defendant and the circumstances of the crime. The reasoning of that case suggests that the opinions which the victim, his family, and his associates had regarding capital punishment could properly be excluded as irrelevant to the imposition of sentence. We find no abuse of discretion in the trial court's refusal to admit the proferred testimony.

XIII. Proportionality Review

Defendant contends that the sentence given in his case is not proportionate when compared to the sentences given in all other capital cases in this state. In State v. Tillman, 750 P.2d at 562, we held that comparative proportionality review was not required by either the federal or the state constitution. In seeking comparative proportionality review, defendant misreads our case law and statutes. In State v. Wood, 648 P.2d 71, 77 (Utah) (per curiam), cert. denied, 459 U.S. 988, 103 S.Ct. 341, 74 L.Ed.2d 383 (1982), we stated that automatic review of a death sentence is conducted in order to “determine whether the sentence of death resulted from error, prejudice or arbitrariness, or was disproportionate.” Section 76-1-104 provides in relevant part: (2) The provisions of this [criminal] code shall be construed in accordance with these general purposes.... (3) Prescribe penalties which are proportionate to the seriousness of the offense and which permit recognition or differences in rehabilitation possibilities among individual offenders.

Neither this section nor the above-quoted language from Wood calls for the type of comparative review defendant would have this Court undertake. Determining whether the penalty is proportionate to the crime requires a careful and thoughtful consideration of the individual defendant and the circumstances surrounding his crime. Focus on the individual defendant and his acts is called for in section 76-1-104, not comparison with other criminals and their crimes. Each defendant is an individual, and each case is unique in its facts. Any attempt to draw broad comparisons between defendants or crimes calls for speculation as to why a particular defendant or crime was dealt with by that jury in that particular fashion. The many factors which may influence a jury's decision cannot be easily identified, let alone quantified.

We are therefore convinced that allowing the jury to conduct comparative proportionality review would confuse the issues and shift the focus away from the particular defendant and those aggravating and mitigating factors in his case and onto the application of the death penalty in the abstract. We are unpersuaded by the evidence presented of the necessity for this Court to undertake comparative proportionality review in all death penalty cases, nor do we feel compelled to accept defendant's invitation to conduct such a review voluntarily in the instant case.

XIV. Prosecutorial Misconduct

Defendant cites four instances of behavior he characterizes as prosecutorial misconduct: (1) referring to defendant as “defendant Bishop”; (2) laughing during a presentation by defense counsel in the penalty phase; (3) stating in the penalty phase that Gardner had escaped from maximum security; and (4) reading from a report that was not received into evidence. The test by which we measure alleged misconduct was articulated in State v. Tillman, 750 P.2d 546, 555 (Utah 1987). We look to see if the actions or remarks of counsel call to the attention of the jury a matter it would not be justified in considering in determining its verdict and, if so, under the circumstances of the particular case, whether “the error is substantial and prejudicial such that there is a reasonable likelihood that in its absence, there would have been a more favorable result for the defendant.”

In the first instance alleged, the prosecution called defendant by the wrong name. Even though the name was that of another defendant of some notoriety,FN4 it was not prejudicial. The reference, taken in context, was inadvertent, was immediately corrected, and did not interrupt the flow of the proceedings or focus the jury's attention on an improper basis for the verdict. FN4. Preceding this trial, Arthur Gary Bishop was tried for the murders of several young boys. His trial and conviction received prominent coverage in the local media. See State v. Bishop, 753 P.2d 439 (Utah 1988).

Defendant's second allegation is that the prosecuting attorney laughed during presentation of a portion of defense counsel's argument in the penalty phase. While we cannot condone such actions, we accept the State's explanation that the prosecutor was merely reacting to defendant's counsel, who had removed exhibits the State had placed before the jury. The trial judge promptly admonished the prosecutor and determined that his action was neither significant nor prejudicial. Where there is no abuse of discretion, such a decision by the trial judge will not be reversed on appeal. See State v. Valdez, 30 Utah 2d at 60, 513 P.2d at 426. Our review of the record reveals nothing that would indicate that the trial court abused its discretion in denying a mistrial on this point.

Neither of the last claimed instances was improper. The reference to Gardner's escape from maximum security was a matter of interpretation. He was being held in “maximum security” at the time of his escapes, both in 1984 and in 1985, even though he was outside the confines of the maximum security unit of the prison when the escapes occurred. This fact was made clear to the jury; therefore, the remark did not misrepresent the facts or focus the jury's attention on an improper basis for its decision. Likewise, the portion of the medical report referred to by the prosecution had been read into the record; therefore, even though the written report had not been received in evidence, the prosecution was arguing from evidence in the record. We find no basis on which to reverse the judgment or sentence based on prosecutorial misconduct. Defendant makes other claims, but because there is no record of the facts from which they arise, we cannot reach them.

XV. Ineffective Assistance of Counsel

Defendant, in supplemental briefing, raises the issue of ineffective assistance of counsel. Specifically, he points out counsel's failure to object to the testimony of Officer Jorgensen, Dr. Heinbecker, and Mr. Fuchs. In Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984), the United States Supreme Court set forth a two-part test to be used in examining claims based upon ineffective assistance of counsel. The defendant must show, first, specific acts or omissions which fall outside the wide range of professionally competent assistance and, second, that a reasonable probability exists that but for counsel's error, the result would have been different. State v. Pursifell, 746 P.2d 270, 275 (Utah Ct.App.1987); State v. Frame, 723 P.2d 401, 405 (Utah 1986) (citing Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699). In State v. Speer, 750 P.2d 186, 192 (Utah 1988), we adopted the approach suggested in Strickland that “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.” See also Pursifell, 746 P.2d at 275.

Here, we need not determine whether counsel's claimed shortfalls meet the first prong of the test. The failure to object to the testimony of Officer Jorgensen, as discussed in section VIII, supra, did not prejudice defendant. Even if his counsel had raised the objection and had been successful in showing a violation of Miranda, the evidence was still admissible for the purpose for which it was offered; therefore, no prejudice resulted from the lack of an objection to this point. Dr. Heinbecker, a forensic psychiatrist, testified on defendant's behalf as to possible sources of defendant's behavior, such as genetics, environment, and possible brain damage. Mr. Fuchs was a member of the Board of Pardons and was called by the defense to testify generally as to the Board's role in reviewing sentences and determining parole dates. Defendant does not identify any instance where his counsel failed to object to any questions asked during cross-examination of either witness. Our review of the record does not show conduct of counsel during the testimony of either witness which was lacking in any aspect of effective assistance. Having carefully reviewed the transcript and proceedings below and the briefs on appeal, we are convinced that there was no prejudice to defendant in these regards. Defendant makes other allegations of ineffective assistance of counsel. However, no record was made on which we can review them.

XVI. Cumulative Error

Having fully reviewed the extensive record in this case, we are convinced that defendant's constitutional rights were cautiously guarded at all phases of the proceeding and that, overall, the trial was conducted in the fair and dignified fashion a capital case deserves. We reject defendant's assertions that the cumulative effect of the alleged irregularities discussed above denied him a fair trial.

Defendant's convictions and sentences, including the sentence of death for the first degree murder conviction, are affirmed. HALL, C.J., concurs.

STEWART, Justice (concurring):

I concur in the majority opinion. However, because today's opinion might otherwise be taken as casting doubt on the position of a majority of the Court on one important point, I append these comments. The majority holds that it is not necessary to reach the issue of the admissibility of prior crime evidence used to prove a capital homicide aggravating factor under Utah Code Ann. § 76-5-202(1)(h) because the admission of that evidence was at most harmless error. That ruling is a sufficient disposition of the issue here.

Nevertheless, it is especially important in a capital case to make the law as clear as possible so as to avoid unnecessary error in the future. For that reason, I think it appropriate to state my concurrence with Justice Zimmerman's opinion in this case which holds that evidence of other crimes used to prove an aggravating circumstance under § 76-5-202(1)(h) must be proved after a jury has first found a defendant guilty of the underlying intentional homicide.

In State v. Bishop, 753 P.2d 439, 489 (Utah 1988), I joined Justice Zimmerman's concurring opinion that expressed a similar view in a somewhat different legal context. Nevertheless, I expressly refrained from joining that opinion insofar as it was based on constitutional grounds. Again, I decline to adopt a constitutional basis for the rule.

The courts historically have had inherent supervisory power over the order of adducing evidence in a case. Reliance on that power in this case is preferable since it is ordinarily better to avoid a constitutional ruling when there is another basis for decision. Constitutionalization of the rule requiring bifurcation could lead to a degree of rigidity in evidentiary matters that could have untoward consequences. Evidence of prior crimes may be appropriate or necessary in the guilt phase of the trial for a variety of reasons. Such evidence may be admissible pursuant to Rule 404(b) to prove motive, intent, identity, and other material issues under certain circumstances. See, e.g., State v. Forsyth, 641 P.2d 1172 (Utah 1982). There may even be instances when a defendant chooses to adduce prior crime evidence, for example, to establish an alibi by showing that he was incarcerated at the time of an alleged crime. In addition, the Legislature has in a number of instances made prior crimes elements of other substantive crimes. Constitutionalization of the rule might affect the use of prior crimes in unanticipated ways. The net effect of all this is that exclusion of evidence of prior crimes as aggravating circumstances on due process grounds could have far-reaching ramifications that I am not prepared to confront. ZIMMERMAN, Justice (concurring):

I join in the majority opinion. However, I write separately to point out that the trial court erred in admitting evidence of Gardner's prior convictions before the jury had determined whether Gardner was guilty of a knowing or intentional homicide.FN1 See State v. James, 767 P.2d 549, 556-557 (1989); State v. Bishop, 753 P.2d 439, 494-99 (Utah 1988) (Zimmerman, J., concurring, joined by Stewart and Durham, J.J.). The bifurcated guilt phase procedure that a majority of the Court said was required in Bishop and that we unanimously imposed in James should have been followed in the present case. See James, 767 P.2d at 556-557; cf. State v. Payton, 361 So.2d 866, 870-74 (La.1978) (holding that prior convictions may not be introduced in the guilt phase of a murder trial and that they may therefore not serve as elements of the crime of first degree murder but must be limited to introduction in the penalty phase as aggravating circumstances justifying imposition of the death penalty).

FN1. If there is any doubt that evidence of prior convictions and other bad acts has tremendous potential to sway the finder of fact unfairly, those doubts should be dispelled by several recent empirical studies. See, e.g., Greene & Loftus, When Crimes are Joined at Trial, 9 Law & Hum. Behav. 193, 193-94, 196-98, 201, 204-06 (1985); Teitelbaum, Sutton-Barbere & Johnson, Evaluating the Prejudicial Effect of Evidence: Can Judges Identify the Impact of Improper Evidence on Juries?, 1983 Wis.L.Rev. 1147, 1173-74 & Table E nos. 3 & 4; Wissler & Saks, On the Inefficacy of Limiting Instructions, 9 Law & Hum. Behav. 37, 37-39, 41-47 (1985); Note, The Appearance of Justice: Judges' Verbal and Nonverbal Behavior in Criminal Jury Trials, 38 Stan.L.Rev. 89, 105, 113, 120-24 & n. 99 & Table 1, 129-30, 133 (1985). The studies uniformly show that in cases involving the same or similar facts, the admission of evidence of prior convictions or the joinder of separate charges significantly increases the likelihood that the accused will be convicted.

A situation virtually identical to that in both the present case and James was presented in Bishop. During the guilt phase of Bishop's trial for sexual abuse and murder, the State offered evidence of many unrelated prior sexual crimes. The Chief Justice, joined by Associate Chief Justice Howe, concluded that the admission of this evidence during the guilt phase did not deny Bishop his constitutional rights because it was authorized by section 76-5-404.1(3)(g) of the Code, which makes one convicted of sexual abuse of a child eligible for an enhanced penalty if the convicted person has committed more than five other acts of sexual abuse. See Bishop, 753 P.2d at 483-88; Utah Code Ann. § 76-5-404.1(3)(g) (Supp.1988). However, in a separate opinion a majority of the Court, consisting of Justice Stewart, Justice Durham, and me, held that the introduction of the prior crimes evidence during the guilt phase was not permitted by section 76-5-404.1(3)(g). See Bishop, 753 P.2d at 494-97 (Zimmerman, J., concurring). Alternatively, we held that even if section 76-5-404.1(3)(g) did authorize introduction of this evidence during the guilt phase, we would exercise our inherent supervisory power over the trial courts to require the trier of fact to determine guilt on the underlying charge before evidence of unrelated prior conduct could be admitted to enhance the penalty. See Bishop, 753 P.2d at 498-99 (Zimmerman, J., concurring). This procedure preserves both the accused's interest in a fair trial and the State's interest in punishing repeat offenders more severely. We found no legitimate state interest to be served by requiring the introduction of the unrelated prior crimes evidence during the guilt phase. FN2

FN2. In Bishop, Justice Durham and I would have gone further and held that the Chief Justice's reading of section 76-5-404.1(3)(g) violates the due process clause of article I, section 7 of the Utah Constitution. 753 P.2d at 497-98. Justice Stewart found no occasion to reach that question. In the present case, there is no need to revisit the constitutional question since the Court has already unanimously expressed itself as being of the view that admission of the evidence of prior crimes was improper on nonconstitutional grounds. See State v. James, 767 P.2d 549, 556-559 (1989); In re Clatterbuck, 700 P.2d 1076, 1080-81 (Utah 1985). In James, issued several weeks ago, we unanimously held that evidence of prior convictions may not be introduced in the guilt phase of a first degree murder trial until after the finder of fact has determined whether the defendant is guilty of a knowing or intentional killing. 767 P.2d at 556-557. That holding followed the separate majority in Bishop, but extended it to section 76-5-202(1)(h).FN3 See James, 767 P.2d at 556-557.

FN3. Section 76-5-202(1)(h), the provision challenged both in the present case and in James, is indistinguishable from section 76-5-404.1(3)(g), the section at issue in Bishop. In fact, the separate majority opinion in Bishop cites section 76-5-202(1)(h) as a statute which produces the same evil that led to the conclusion that the order of proof followed by the trial judge in Bishop was improper. See Bishop, 753 P.2d at 499 n. 8 (Zimmerman, J., concurring). The next question is whether the trial court's erroneous mode of proceeding resulted in prejudicial error. As Associate Chief Justice Howe notes, the only evidence of prior crimes introduced to satisfy the requirements of section 76-5-202(1)(h) of the Code related to two robberies. See Utah Code Ann. § 76-5-202(1)(h) (Supp.1988). After the evidence of the previous crimes was admitted, the prosecutor referred to the prior convictions only as necessary to demonstrate that the State had proven the aggravating element of first degree murder contained in subpart (h). Gardner took the stand and disclosed his extensive criminal record, which included other convictions that were more prejudicial than the two robberies. Finally, Gardner did not contest that he had, in fact, committed the murder of which he was convicted; his only defense was that he did not have the requisite intent for first degree murder.

Under these circumstances, I conclude that the error committed by the trial court was harmless under the standard contained in rule 30 of the Utah Rules of Criminal Procedure and rule 103 of the Utah Rules of Evidence. See State v. Bishop, 753 P.2d at 499-500 (Zimmerman, J., concurring); State v. Hackford, 737 P.2d 200, 204-05 & n. 1 (Utah 1987); Utah R.Crim.P. 30; Utah R.Evid. 103. I also conclude that the error was harmless under the federal constitutional harmless error standard, if it is applicable here. See Bishop, 753 P.2d at 500-01 (Zimmerman, J., concurring); Hackford, 737 P.2d at 205-06 & n. 3.

For the foregoing reasons, I join the majority in holding that Gardner's conviction should be affirmed. DURHAM, J., concurs in the concurring opinion of ZIMMERMAN, J.

Gardner v. Holden, 888 P.2d 608 (Utah 1994). (Postconviction Relief)

After conviction for first-degree murder, attempted first-degree murder, aggravated kidnapping, escape, possession of dangerous weapon by inmate and death sentence were affirmed on direct appeal, 789 P.2d 273 petition was filed for extraordinary relief. The District Court, Salt Lake County, Raymond S. Uno, J., granted petitioner a new penalty hearing and a new appeal. The state appealed and petitioner cross-appealed. The Supreme Court, Stewart, Associate C.J., held that: (1) petitioner was not prejudiced by defense counsel's failure to give psychiatrist more than 24 hours to prepare evaluation of petitioner's mental condition; (2) attorney appointed to represent petitioner on appeal did not have conflict of interest arising from earlier representation of woman who handed petitioner the gun used in courthouse shootings; and (3) no prejudice resulted from appointed appellate counsel's confining his arguments to petitioner's claims of ineffectiveness of trial counsel and otherwise relying on briefs prepared by discharged trial counsel. Vacated and remanded. Zimmerman, C.J., and Durham, J., concurred in result.

STEWART, Associate Chief Justice:

A jury convicted Ronnie Lee Gardner of first degree murder, attempted first degree murder, aggravated kidnapping, escape, and possession of a dangerous weapon by an inmate. He was then sentenced to death. His conviction and sentence were affirmed on direct appeal in State v. Gardner, 789 P.2d 273 (Utah 1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 965 (1990).

Gardner filed this petition for post-conviction relief in district court, challenging both his conviction and his sentence. The district court ruled that Gardner had been denied effective assistance of counsel in the penalty hearing and on appeal because trial counsel did not give a defense psychiatrist adequate time to test and evaluate Gardner and because appointed appellate counsel did not adequately research and brief issues on appeal. The court held that these deficiencies entitled Gardner to a new penalty hearing and a new appeal.

On appeal, the State argues that counsel's performance was not deficient and, alternatively, that any alleged deficiencies were not prejudicial. Gardner cross-appeals, arguing that his conviction should have been set aside and that the district court erred in rejecting his other claims of error.

I. FACTS

The facts developed at the trial and at the hearing on the petition for post-conviction relief are as follows: On April 2, 1985, Ronnie Lee Gardner was transported from the Utah State Prison to the Metropolitan Hall of Justice in Salt Lake City for a pretrial hearing on a second degree murder charge. As Gardner and his guards entered the courthouse basement, a woman handed Gardner a gun. The guards exchanged gunfire with Gardner, shot him through the lung, and then retreated from the area. In attempting to escape, Gardner entered the archives room, where he saw two attorneys, Robert Macri and Michael Burdell, hiding behind the door. Gardner pointed the gun at Macri and cocked the hammer of the gun. Burdell exclaimed, “Oh, my God!” Turning, Gardner shot and killed Burdell.

Gardner then forced prison officer Richard Thomas, who was also in the basement, to conduct him out of the archives room to a stairwell leading to the second floor. As Gardner crossed the lobby, he shot and seriously wounded Nick Kirk, a uniformed bailiff. Gardner climbed the stairs to the next floor, where he took hostage Wilburn Miller, a vending machine serviceman. As Gardner exited the building, Miller broke free and escaped. Outside, Gardner threw down his gun and surrendered to waiting police officers.

Gardner's attorneys, brothers Andrew and James Valdez of Salt Lake Legal Defenders Association, were to meet Gardner that day at 9:00 a.m. for the pretrial hearing. Andrew Valdez was walking toward the courthouse when he saw Gardner go down to the ground. As Andrew ran across the street, he could see that Gardner was bleeding from the chest. Andrew spoke with Gardner and then left. James Valdez arrived at the courthouse soon after. He immediately approached Gardner and asked him if he was all right; Gardner responded that he was in pain.

Gardner was later transported to the University Hospital. Wayne Jorgensen, a prison officer assigned to guard Gardner at the hospital, testified at trial that Gardner told him he shot Burdell because he thought Burdell looked as if he would jump on him. According to Jorgensen, Gardner also declared that he would have killed anyone who tried to stop him from escaping.

Both Andrew and James Valdez represented Gardner at trial. The thrust of the defense was that Gardner was in such pain and physical distress after he was wounded that his shooting Burdell was only a reaction and therefore the killing was unintentional. In preparation for trial, defense counsel spoke with the emergency room doctors who treated Gardner. The doctors told counsel that Gardner was not in shock when he came into the emergency room, did not have excessive bleeding, was lucid and demanding, and was aware of the situation.

Robert Macri testified at trial that after Gardner shot Burdell, Macri ran around the door and closed it behind him as a shield. However, at the preliminary hearing, Macri testified that he could not remember how the door shut. After the preliminary hearing but before trial, unknown to either the prosecution or defense counsel, Macri underwent hypnosis to help him remember how the door shut. Macri could not recall that detail while under hypnosis but asserted that while driving to California some months later, he suddenly recalled that he had shut the door. In all other respects, Macri's testimony at the preliminary hearing and at trial were the same. It was at the post-conviction proceeding while Gardner's appeal was pending that defense counsel first became aware that Macri had been hypnotized prior to trial.

At trial, Gardner took the stand and testified on direct examination that he had been convicted of various crimes, including crimes of violence. Defense counsel elicited this information, according to the testimony at the habeas hearing, because he believed that the prosecution would use those convictions to impeach Gardner and he wanted to “steal the prosecution's thunder.”

At the penalty hearing, defense counsel called Dr. Heinbecker, a psychiatrist, to testify regarding Gardner's mental status. On the basis of Gardner's medical history and previously administered psychological and I.Q. tests, Dr. Heinbecker testified that it was likely that Gardner suffered from organic brain damage. The prosecution challenged that diagnosis with other prior psychological evaluations performed on Gardner. However, Dr. Heinbecker had only twenty-four hours to prepare for testifying. His preparation consisted of interviewing Gardner, Gardner's mother, and Gardner's brother and reviewing Gardner's previous medical and psychological records. Dr. Heinbecker did not administer any psychological tests to Gardner but relied on tests administered by prison psychologists and others.

On direct appeal from the conviction and sentence, the Salt Lake Legal Defenders' Association (LDA) continued to represent Gardner. However, after LDA's brief was filed, Gardner filed a pro se supplemental brief alleging ineffective assistance of counsel at trial. A few days before oral argument, Gardner asked LDA to withdraw as his attorneys. As a result, LDA moved to withdraw three days before oral argument. The Court denied the motion to withdraw but appointed attorney Ed Brass to file a supplemental brief for Gardner on his ineffectiveness-of-counsel claim and permitted Gardner to supplement his brief and the oral argument of LDA. The supplemental brief asserted that trial counsel were ineffective in failing to object to the admission of certain testimony but stated that other claims of ineffectiveness of counsel were premature because there was no record upon which to base a review.

II. HABEAS REVIEW

Gardner raised numerous issues in his petition for post-conviction relief, and the district court addressed the merits of all of them. The issues a petitioner may properly raise in a petition for post-conviction relief, however, are limited. Rule 65B(b) of the Utah Rules of Civil Procedure provides for post-conviction relief for those who have been wrongfully imprisoned due to “a substantial denial of rights.” Nevertheless, the rules that govern a Rule 65B proceeding limit the kinds of issues that can properly be raised and considered.

A petition for post-conviction relief, or habeas corpus, collaterally attacks a conviction and/or a sentence. It is not a substitute for direct appellate review. Codianna v. Morris, 660 P.2d 1101, 1104 (Utah 1983). Issues raised and disposed of on direct appeal of a conviction or a sentence cannot properly be raised again in a Rule 65B proceeding, Hurst v. Cook, 777 P.2d 1029, 1036 (Utah 1989), and should be dismissed as an abuse of the writ without a ruling on the merits. Issues that could and should have been raised on direct appeal, but were not, may not properly be raised in a habeas corpus proceeding absent unusual circumstances. Fernandez v. Cook, 783 P.2d 547, 549 (Utah 1989); Codianna, 660 P.2d at 1104. The unusual circumstances test requires a showing of “an obvious injustice or a substantial and prejudicial denial of a constitutional right.” Hurst, 777 P.2d at 1035; Fernandez, 783 P.2d at 549; Codianna, 660 P.2d at 1005; Dunn v. Cook, 791 P.2d 873, 876 (Utah 1990). “ ‘[T]he unusual circumstances test was intended to assure fundamental fairness and to require reexamination of a conviction on habeas corpus when the nature of the alleged error was such that it would be “unconscionable not to reexamine” ... and thereby to assure that “substantial justice [was] done”....’ ” Hurst, 777 P.2d at 1035 (quoting Codianna, 660 P.2d at 1115 (Stewart, J., concurring)). In all events, it is not the function of a Rule 65B proceeding to allow a defendant to scour the record of the original proceeding for a technical error upon which to collaterally attack a conviction or a sentence. Ordinarily, assertions of error based on evidentiary, procedural, and instructional rulings are deemed waived under the law unless an erroneous ruling made the trial fundamentally unfair. Id. at 1035 n. 5. In all Rule 65B proceedings, it is the burden of the petitioner, i.e., the defendant in the initial proceeding, to plead and prove the existence of such fundamental unfairness.

On the basis of the foregoing principles, we will not review the merits of six issues that Gardner has raised in his petition for post-conviction relief; indeed, the trial court's rulings on the merits of those issues were improper. Two of the issues Gardner raises will be addressed on the merits: (1) Ineffective assistance of counsel at trial and on direct appeal; and (2) error in the habeas proceeding in not appointing an investigator and an expert witness at state expense to assist Gardner in prosecuting his petition.

III. ISSUES NOT ADDRESSED ON THE MERITS

Six of the issues Gardner raises could have been raised on direct appeal and were not. Those issues are (1) error by the trial court in admitting hypnotically enhanced testimony; (2) error by the trial court in not advising Gardner of his right to remain silent and not testify; (3) violation of Gardner's right to be present at all the hearings in his case; (4) consideration by the jury of impermissible information about the victim; (5) failure to instruct the jury on all the statutory mitigating circumstances in the penalty phase; and (6) failure to instruct the jury in the penalty phase that the existence of aggravating factors had to be found beyond a reasonable doubt before they could be considered in deciding to impose the death penalty.

None of the rulings, even if erroneous, was of such a fundamental nature as to have made the trial fundamentally unfair. Issue (1), that the trial court should not have allowed hypnotically enhanced testimony, relates only to Robert Macri's unimportant testimony that he closed the archives room door behind him when he ran out of the room. That testimony went only to a collateral issue that was, at most, marginally related to Gardner's defense. Issue (2), that the trial court should have advised Gardner of his right to remain silent and not testify, is frivolous and does not raise a claim that resulted in a substantial denial of a right. Gardner had been advised of his right not to testify by his counsel, and his decision to testify was made on advice of counsel. Issue (3), that his due process right was violated because he was not present during a hearing on a motion by co-defendant Hainsworth, is also frivolous. Gardner asserts nothing that even remotely supports the suggestion that critical proceedings were held in his absence. In fact, Gardner and his attorney attended the hearing on Hainsworth's motion to disqualify the judge but left before the matter was concluded because Gardner felt ill and the trial judge had continued the hearing to a new date. Gardner attended the second hearing.

Issue (4) is that the jury was allowed to hear impermissible victim impact evidence. The evidence Gardner attacks was (1) Macri's testimony that he knew Burdell well and that Burdell did public service work, and (2) prosecutorial comments during closing argument that Burdell “was a human being with life's pleasures, with life's challenges and with life's opportunities before him.” Gardner also attacks the prosecutor's comment that Burdell was a lawyer who did pro bono work and that Burdell had a right to live. Those statements were not “victim impact evidence” and could not have produced any unfairness, fundamental or otherwise, in the trial.

Issue (5) is that the trial court did not instruct the jury on all the statutory mitigating circumstances contained in Utah Code Ann. § 76-3-207(2).FN1 The trial court instructed the jury on all but three of the statutory mitigating circumstances: (1) there was no significant history of prior criminal activity; (2) the defendant acted under extreme duress or under the substantial domination of another; and (3) the defendant was an accomplice in a murder committed by another person and his participation was relatively minor. There was no factual basis for any of these mitigating circumstances; there was no fundamental unfairness on this issue. FN1. Section 76-3-207 has been amended. The statutory mitigation circumstances are now set forth in section 76-3-207(3).

Finally, issue (6) is that the trial court refused to instruct the jury in the penalty phase that the existence of aggravating factors had to be proven beyond a reasonable doubt before the jury could consider any of them in deciding to impose the death penalty. However, Gardner does not now challenge any of the evidence of aggravating factors, and that evidence was essentially unchallenged at the penalty hearing. The evidence consisted largely of eyewitness accounts of Gardner's past violent acts, such as his escapes from prison and his criminal record. Even now, Gardner does not assert that the evidence was unreliable, inaccurate, or otherwise subject to question. The trial court's failure to give the instruction did not cause fundamental unfairness. In short, these assertions of error fall far short of meeting the “unusual circumstances” test.

IV. INEFFECTIVE ASSISTANCE CLAIMS

Gardner alleges as a ground for post-conviction relief that he was denied his right under the Sixth Amendment to the United States Constitution to the effective assistance of counsel at trial and on appeal in the following respects: (1) trial counsels' failure to give Gardner's psychiatric expert adequate time to prepare mitigating testimony in the penalty phase; (2) failure of assigned appellate counsel, Ed Brass, to disqualify himself because of a conflict of interest arising from his representation of the woman accused of handing Gardner the gun at the courthouse and his failure to research adequately and raise issues on direct appeal; (3) trial counsels' failure to resign as counsel because they were witnesses to Gardner's condition at the time of his arrest and because of animosity between them and Gardner; (4) trial counsels' “coercion” of Gardner to testify that he had been convicted of violent crimes; (5) their failure to request a bifurcated trial to deal with an aggravated circumstance based on prior convictions; and (6) counsels' failure to introduce important evidence.FN2

FN2. The omitted “important” evidence included ballistics evidence and the clarifying fact that Gardner was shot in the chest through the lung, not in the shoulder, as some witnesses testified.

Because an attorney does not usually assert a claim of ineffectiveness on appeal on his or her part with respect to an error made at trial, Fernandez v. Cook, 783 P.2d 547, 549-50 (Utah 1989); Jensen v. DeLand, 795 P.2d 619, 621 (Utah 1989), the unusual circumstances test may be satisfied when there is a claim of ineffectiveness of trial counsel and the same attorney handled both the trial and the direct appeal. Fernandez, 783 P.2d at 549-50; Dunn v. Cook, 791 P.2d 873, 878 (Utah 1990) (plurality opinion); see also Bundy v. Deland, 763 P.2d 803, 805 (Utah 1988). To constitute ineffectiveness of counsel within the meaning of the Sixth Amendment, counsel's deficiencies must be “sufficiently grievous to deprive petitioner of the effective assistance of counsel.” Codianna v. Morris, 660 P.2d 1101, 1105 (Utah 1983). In Codianna, the Court stated:

To permit the inevitable instances of attorney oversight or ignorance to qualify for the “unusual circumstances” exception would allow that exception to swallow up the rule, thereby transforming habeas corpus from an extraordinary remedy into an alternative appeal mechanism in contravention of the finality of criminal judgments that is the settled policy of this state. Id. at 1105. A claim of ineffective assistance of counsel may not, therefore, be used simply to relitigate “under a different guise” an issue already disposed of on direct appeal. Hurst v. Cook, 777 P.2d 1029, 1037-38 (Utah 1989).

A. Ineffectiveness Claims Decided Directly or in Substance on First Appeal

We turn first to Gardner's fourth, fifth, and sixth claims of ineffective assistance of counsel, which we dispose of summarily and not on the merits. Thereafter, we address, on the merits, the first three claims of ineffectiveness for reasons that will be explained. Gardner's fourth claim of ineffective assistance was counsels' “coercion” of Gardner to testify at trial. In essence, that claim was raised and disposed of on Gardner's direct appeal when the Court rejected Gardner's assertion that the admission of his prior inconsistent statements violated his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Gardner, 789 P.2d at 281-82. Gardner's claim now is that his attorneys coerced him to testify and that his coerced testimony led to that impeachment testimony. As an aside, we note that there is no evidence on record in this proceeding that supports any such coercion.

Gardner's claim that his counsel was ineffective because they elicited testimony from Gardner on the stand that he had been convicted of other violent crimes was also essentially disposed of on the direct appeal and has also been addressed, at least in part, above. His argument is that the evidence of his prior felony conviction made the jury “prone to convict him because of his ‘bad character.’ ” Id. at 279. This Court held on direct appeal that it was error to admit that evidence but that it was not prejudicial. Id. at 290-91 (Zimmerman, J., concurring, joined by Stewart & Durham, JJ.). Gardner now asserts essentially the same argument under the guise of an ineffective assistance claim. Because that evidence was not prejudicial, as we have previously held, it cannot be the basis for an ineffectiveness claim.

Gardner's claim that trial counsel should have requested a bifurcated proceeding to deal with the aggravating circumstance based on a prior felony conviction was also essentially disposed of on direct appeal. The Court held that although it was error not to hold a bifurcated hearing, the failure to bifurcate did not prejudice Gardner. Id. at 290-91 (Zimmerman, J., concurring, joined by Stewart & Durham, JJ.). The failure to request the hearing, the specific issue raised now, is essentially the same issue as that disposed of on the first appeal. The attempt to avoid a prior ruling by a hair-splitting distinction in the statement of the issue does not invoke Rule 65B or habeas jurisdiction.

B. Frivolous Claims

Gardner claims that trial counsel were ineffective because they failed to clarify for the jury that Gardner was shot in the chest and lung instead of in the shoulder, as some witnesses testified. That issue is frivolous as a basis for post-conviction relief. Whatever difference there may have been with respect to the shock and trauma Gardner suffered from being shot in the chest and lung rather than in the shoulder is wholly insufficient to show fundamental unfairness. The state of Gardner's consciousness and awareness was before the jury through several witnesses. The additional assertion that counsel failed to introduce ballistics evidence that might have related to the degree of shock Gardner suffered is also frivolous. Again, the jury had evidence on which it could make that judgment. In all events, the argument, even if it had merit, would fall far short of showing a denial of fundamental fairness in the trial.

C. Ineffectiveness Claims Addressed on the Merits

We address the first three claims of ineffectiveness on the merits. They allege errors that were not addressed either directly or in substance on the first appeal and that, if factually correct, might have denied Gardner the fundamental fairness to which he was entitled in his trial, in the penalty hearing, or on his appeal from those proceedings.

In addition, the record that was developed at trial and was before this Court on the first appeal did not provide a basis for deciding those issues. Where an issue going to the fundamental fairness of a trial involves nonrecord events, Rule 65B may be the only means whereby a defendant can obtain a fair adjudication of the issue.

The issue of Brass's asserted ineffectiveness on the appeal could only be raised in a petition for post-conviction relief. In addition, the public defenders did not raise any issue as to their ineffectiveness on the direct appeal, and Brass argued that except for trial counsels' failure to object to certain testimony at the penalty phase, any ineffectiveness claim as to the public defenders was premature because there was not an adequate record. In the habeas hearing below, habeas counsel were allowed to present evidence with respect to Gardner's first three claims of ineffective assistance of counsel at trial.

We turn now to the merits of the following three ineffective assistance claims: (1) trial counsels' not allowing Gardner's psychiatric expert adequate time to prepare for the penalty phase; (2) Ed Brass's alleged “conflict of interest” with Gardner arising from his representation of the woman accused of handing Gardner the gun at the courthouse, giving rise to Brass's not adequately representing Gardner on appeal; and (3) the “conflict of interest” trial counsel allegedly had because they were witnesses to Gardner's condition at the time of his arrest and because of the animosity that existed between Gardner and his attorneys.

1. Expert Preparation Theory for Penalty Phase

The district court vacated Gardner's death sentence and granted him a new penalty hearing because defense counsel failed to provide Gardner's expert psychiatric witness sufficient time to examine Gardner prior to testifying at the penalty hearing. The court stated in its memorandum decision:

“Effective representation of the accused in a capital case remains that counsel challenged the State's aggravating evidence and present a cohesive and understandable theory of mitigation.” Petitioner contends this was not done. Primarily, there was inadequate investigation relating to petitioner's mental health prior to trial. Whatever evidence was presented was inadequate-too little and too late. There is dispute regarding Dr. Peter Heinbecker's testimony. Was there sufficient time and sufficient medical or psychological evaluations for Dr. Heinbecker to adequately and completely testify on behalf of petitioner? The Court is of the opinion there was not. Dr. Heinbecker was contacted a mere 24 hours before he testified. During that time, he “was only able to examine some of the record, interview Mr. Gardner for about one hour, and talk to his mother and brother for a total of 2.5 hours.” Further, Dr. Heinbecker testified that, in a case of this significance, he would have expected more time to prepare his evaluation.

The district court also observed that although defense counsel had arranged for psychiatrist Dr. Mark Rindflesh to evaluate Gardner in May 1985, counsel did not ask him to testify for Gardner. Gardner's attorneys also asked Dr. Agnes Plenk to evaluate Gardner and to testify for him, but she also declined. The court stated: No further effort was made to seek professional assistance for petitioner, nor seek state assistance in doing so. In addition, present counsel's efforts to secure expert testimony for petitioner's evaluation was opposed by the State and sustained by this Court. As a result, no satisfactory mental health evaluation of petitioner has ever been available to petitioner to present at any hearing.

Petitioner contends the deprivation of adequate evaluations has prevented petitioner from presenting any evidence of possible organic brain damage or other mitigating information which further prevented presentation of “a cohesive and understandable theory of mitigation.” The Court agrees. The district court did not comment either on the testimony of Dr. Heinbecker at the penalty hearing or suggest any additional evidence that might have been presented had he had more time to prepare. The Court stated only that Dr. Heinbecker's preparation time was severely limited and that in the habeas proceeding, Dr. Heinbecker testified that “in a case of this significance, he would have expected more time to prepare his evaluation.” In fact, Dr. Heinbecker did not indicate that he might have produced any new evidence.

To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate first that counsel committed specific acts or omissions that “fall outside the wide range of professionally competent counsel and, second, that a reasonable probability exists that but for counsel's error, the result would have been different.” Gardner, 789 P.2d at 288; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Templin, 805 P.2d 182, 186 (Utah 1990). This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, “a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; see also Templin, 805 P.2d at 186. In a death penalty case, when an ineffectiveness claim is made on a petition for post-conviction relief with respect to the penalty hearing, the petitioner must be able to show some possibility that but for the error, the sentencer would have imposed a life sentence rather than death. This standard is necessitated by the extremely sensitive nature of the issue before the sentencer and the inexact and somewhat subjective nature of the considerations that must guide the sentencer. See State v. Wood, 648 P.2d 71, 77-82 (Utah 1981); see also State v. Holland, 876 P.2d 357, 359-61 (Utah 1994); State v. Holland, 777 P.2d 1019 (Utah 1989).

Nevertheless, it was Gardner's burden, in the habeas proceeding, to adduce what favorable evidence could have been presented in his behalf if Dr. Heinbecker had been given more time to prepare. At the penalty hearing, Dr. Heinbecker presented evidence that Gardner suffered from organic brain damage and that, coupled with other mitigating circumstances, explained Gardner's antisocial behavior. Prior to the penalty hearing, Dr. Heinbecker interviewed Gardner for one hour, Gardner's mother for one hour, and Gardner's brother for one and a half hours. Dr. Heinbecker did not administer any psychological tests to Gardner, but he reviewed a number of psychological and medical records relating to Gardner's mental status from the Utah State Hospital and other institutions, beginning when Gardner was about two years old through 1980. A psychiatric report completed after the courthouse shooting in 1985 was also available to Dr. Heinbecker.

Based on his own interviews and the psychological records he reviewed, Dr. Heinbecker testified that Gardner suffered from organic brain damage. Gardner had contracted meningitis at the age of four and had sniffed glue and gasoline from age nine until after age thirteen. Both meningitis and glue sniffing can cause brain damage. Psychological tests performed on Gardner at the Utah State Hospital in 1972, according to Dr. Heinbecker, suggested the possibility of some brain damage. Although Gardner's overall I.Q. was 88, which falls in the dull-normal range, he had comparatively high scores on parts of the test and low scores on other parts, which suggested a degree of organic brain damage. The test was administered by an evaluator from the Utah State Hospital, who concluded that “his practical reasoning ability is in the average or above average range; whereas, his impaired ability to deal with and reproduce written symbols seriously hinders his chance to profit from the usual academic learning situation.”

In addition, Dr. Heinbecker explained Gardner's behavior in terms of three other facts. Dr. Heinbecker testified that Gardner grew up in an unstable and impoverished environment. Indeed, Gardner had been institutionalized for most of his life, beginning at age eight and continuing into adulthood, with the result that Gardner absorbed the moral values of others involved in antisocial criminal conduct. Dr. Heinbecker also testified that Gardner suffered from an antisocial personality disorder that might be explained genetically. Gardner's grandfather, brother, sister, nephew, three cousins, and two half-siblings had all been involved in juvenile court proceedings and/or spent time in prison. Finally, Dr. Heinbecker suggested that Gardner's problems stemmed from parental neglect and inadequate parenting.

On cross-examination in the penalty hearing, the prosecutor did not challenge Dr. Heinbecker's opinions with respect to Gardner's institutional and family background or the personality disorder but confined his questions to the statements that Gardner suffered from organic brain damage. On redirect examination, defense counsel elicited the following information: Q. You indicated that the only way that you can find organic brain damage is to test. What test was that? A. Well, the Bender-Gestalt is one of the tests. There are a number of tests that could be used to learn about organic damage, and the Bender-Gestalt is certainly not the best one, but it is the only one that I could find that was used in these tests.

The prosecution presented a psychological evaluation made by Dr. John Gill, a clinical psychologist, who stated, based at least in part on the results of a Bender-Gestalt test, that his “findings are not indicative of blatant organic impairment.” Dr. Heinbecker had not previously seen a copy of the report but testified, “What this suggests to me is that he may have had some questions about it.” Defense counsel then asked Dr. Heinbecker what Dr. Gill's statement meant, to which he replied, “Well, you know, when he says it is not indicative of blatant organic impairment, it sounds to me like he is hedging his bets on whether there is organic impairment or not. In other words, he is saying, to me, more sophisticated testing ought to be done.”

In the evidentiary hearing in the Rule 65B proceeding, Gardner was given an opportunity to demonstrate exactly how the short preparation time given Dr. Heinbecker impaired his ability to present evidence favorable to Gardner. Dr. Heinbecker was asked if the four hours he spent interviewing Gardner and his family were enough for him to make a complete diagnosis. Dr. Heinbecker stated only that he would have expected to have more time in a case of this magnitude. He did not indicate that any more information could have been developed that would have favored Gardner if he had had more time to prepare. He did not testify that had he administered tests such as the Bender-Gestalt, the Halstead-Rectar, or the Lowery Nebraska, how such additional information would have affected any aspect of Dr. Heinbecker's assessment of Gardner's relevant judgment, reasoning, or behavior, even if they specified more precisely the degree of brain damage. Dr. Heinbecker stated only that it would have been helpful in formulating his diagnosis if Gardner had performed a psychological pen and paper test. Gardner's attorney then, by a leading question, suggested that “if there had been more time, there are many things that you would have done that would have helped you in diagnosis.” Dr. Heinbecker merely responded that he “would have liked to have planned the evaluation more carefully.” He proved no prospect of any other information of mitigating evidence.

In light of Dr. Heinbecker's testimony, both at the penalty hearing and at the evidentiary hearing below, we do not believe that Gardner was prejudiced by the initial trial court's failure to give Dr. Heinbecker more time or by defense counsels' failure to provide more time to Dr. Heinbecker to prepare. In short, the district court erred in determining that Gardner was denied the effective assistance of counsel in the penalty phase.

2. Ineffective Assistance of Counsel on Appeal

Gardner argues that he did not have the effective assistance of counsel on the appeal from his conviction and sentence because attorney Ed Brass had a conflict of interest arising from his representation of Gardner and his earlier representation of Carma Hainsworth, the woman who handed Gardner the gun in the courthouse. In addition, Gardner asserts that Brass was ineffective because he did not independently review the trial record to ensure that all appealable issues were adequately addressed in the supplemental brief he filed in the first appeal and because LDA failed to completely withdraw as counsel when ordered to do so by this Court.

The district court ruled (1) that Brass's representation of Carma Hainsworth did not create a conflict of interest with Brass's representation of Gardner on appeal, and (2) that Brass did not provide effective representation because he did not act as an independent counsel. When Gardner asserted his claim of ineffectiveness of trial counsel to this Court on the first appeal just prior to oral argument, this Court appointed Brass to replace LDA as Gardner's appellate attorney.

The trial court on the habeas petition found that although this Court directed Brass to brief all issues not previously addressed by LDA, he addressed only the single issue of ineffective assistance of counsel because Chief Justice Hall had informed him in a telephone conversation that the scope of his appointment was so limited. The district court also found that the LDA trial attorneys, after being discharged as counsel, prepared and filed supplemental petitions for rehearing that were signed by Brass. The trial court concluded that there was a question as to whether the issues raised on appeal were properly addressed by Brass. The trial court ordered a new appeal to this Court so that Gardner would have the opportunity to appeal all issues based on habeas counsel's own investigation and research.

On this appeal, Gardner challenges the district court's ruling that Brass did not have a conflict of interest because of his representation of Hainsworth. Gardner also argues that the district court correctly ruled that Brass did not provide independent appellate representation for him and that a new appeal is therefore required. Gardner asserts that an actual conflict of interest existed and that he is not required to show prejudice under Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984).

Strickland imposed a presumption of prejudice when defense counsel labors under an actual conflict of interest, because an attorney's duty of loyalty is “the most basic of counsel's duties.” Id. at 692, 104 S.Ct. at 2067; State v. Holland, 876 P.2d 357, 359 (Utah 1994); State v. Brown, 853 P.2d 851, 857-58 (Utah 1992). Prejudice is presumed in the case of a conflict of interest “if the defendant demonstrates that counsel ‘actively represented conflicting interests' and that ‘an actual conflict of interest adversely affected his lawyer's performance.’ ” Strickland, 466 U.S. at 692, 104 S.Ct. at 2067 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348-50, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980)).

Brass's prior representation of Hainsworth did not give rise to a conflict of interest. The charges against Hainsworth were resolved separately from the charges against Gardner, and by the time Brass was appointed to represent Gardner, the charges against Hainsworth were concluded, and a conflict, potential or otherwise, no longer existed between the two defendants. The district court correctly rejected Gardner's claim.

With respect to Brass's effectiveness on appeal, the district court misapprehended the law and the facts. The evidence is that Gardner requested that LDA withdraw as appellate counsel only a few days before oral argument but after all briefing in the case had been completed. This Court's file confirms that LDA filed a motion to withdraw, accompanied by a motion to stay proceedings, three days before oral argument. That motion was argued immediately prior to the oral argument on the merits of the appeal, and the motion was denied. The Court did, however, allow Gardner to supplement the arguments of LDA with arguments of other counsel and to supplement within thirty days the LDA brief with matters not already addressed. Approximately one month after oral argument, Gardner filed a pro se motion to remove LDA as his counsel of record. That motion was granted, and this Court appointed Brass “counsel for the purpose of assisting defendant in the filing of a supplemental brief which shall address only matters not previously addressed.”

Although the order appointing Brass allowed him to present any issue not already addressed, Brass confined his arguments to Gardner's ineffective assistance of counsel claims on the ground that Chief Justice Hall told him that was all he was required to do. The district court apparently believed that this resulted in the failure to raise some appealable issues. However, neither the district court nor Gardner on this appeal has pointed out any meritorious issues that could have been, but were not, raised on direct appeal by either LDA or Brass.

The district court also relied on the fact that LDA prepared appellate papers subsequent to LDA's discharge. After this Court's opinion was handed down, an LDA attorney prepared a supplemental petition for rehearing and a supplemental reply to the State's response to the petition for rehearing that were signed and filed by Brass after he reviewed, approved, and signed the documents. Neither Gardner nor the district court suggests any deficiencies in those documents or refers to any issues that should have been raised.

In short, habeas counsel has apprised us of no issues that should have been raised on the first appeal, and we are aware of none. Although we certainly do not condone either LDA's preparation of documents in connection with the petition for rehearing after LDA was discharged or Brass's signing them, no prejudice flowed therefrom.

V. CONFLICT OF INTERESTS WITH TRIAL COUNSEL

Gardner asserts that Andrew and James Valdez should have disqualified themselves from representing Gardner because they were witnesses to Gardner's condition after the courthouse shooting. The district court ruled that the Utah Rules of Professional Conduct and the Code of Professional Conduct previously in effect prohibited the Valdez brothers from representing Gardner but that Gardner had waived any “conflict of interest.” Gardner challenges the court's finding that he waived the conflict of interest.

At the time of the events in question here, the Revised Rules of Professional Conduct of the Utah State Bar governed the conduct of Utah attorneys.FN3 Disciplinary Rule 5-102(A) provided: FN3. The Utah Rules of Professional Conduct became effective on January 1, 1988, and currently govern attorney conduct in Utah.

If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4). FN4. None of the exceptions in DR 5-101(B)(1) through (4) applies here.

Rule 3.7 of the Rules of Professional Conduct currently proscribes a lawyer's responsibility when he or she may be called as a witness. That rule states: (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) The testimony relates to an uncontested issue; (2) The testimony relates to the nature and value of legal services rendered in the case; or (3) Disqualification of the lawyer would work substantial hardship on the client. “ ‘[A]pplication of this rule does not depend on whether an attorney will be called but rather, as the Code provides, on whether he “ought to be called as a witness” in the underlying action.’ ” State v. Leonard, 707 P.2d 650, 653 (Utah 1985) (quoting Groper v. Taff, 717 F.2d 1415, 1418 (D.C.Cir.1983) (per curiam)).

The thrust of Gardner's defense was that he was confused at the time of the shootings and did not intend to kill Burdell and that his demeanor after the shooting was therefore relevant to his defense. The Valdez brothers testified in the habeas proceeding that their testimony would have added nothing to Gardner's defense. Andrew Valdez testified that Gardner responded coherently to his questions on the courthouse lawn and that this might have cut against the defense theory that Gardner was confused at the time of the shooting. James Valdez testified that he had nothing to add concerning Gardner's state of mind at the time of the shooting. Gardner argues that this assertion by James Valdez is belied by the fact that he attempted to introduce facts about Gardner's conduct at the scene, well after both shootings, during the cross-examination of a prosecution witness. The only fact that James Valdez tried to bring out was that Gardner grimaced with pain while sitting on the courthouse lawn. That fact, while marginally relevant, adds nothing to establishing that Gardner was confused or incoherent when he shot Burdell. Although the Valdez brothers were “potential” witnesses, they were not material witnesses, and nothing in the record indicates that they ought to have been called as witnesses. It is true that to the extent their observations were contrary to Gardner's theory of his defense, they might have been called by the State, but they were not. Whatever the ethical propriety of the conduct of defense counsel, no harm accrued to Gardner.

Gardner also asserts that defense counsel had a conflict of interest because they knew Nick Kirk, whom Gardner had shot during his escape attempt, and other witnesses, and because Gardner and his attorneys had an acrimonious relationship. That is not the basis for a conflict of interest.

Although there was animosity between Gardner and Andrew Valdez, Gardner does not explain how this adversely affected counsels' performance. He asserts that he was extremely unhappy about his confinement conditions and upset with Mr. Valdez because he did nothing to help the situation and that in an effort to change those conditions, Gardner attempted to plead guilty at a pretrial hearing, but his attorneys convinced him not to. These facts do not reflect adversely on counsels' performance. The fact that a defendant does not get along with his attorney does not, standing alone, establish a denial of the effective assistance of counsel. Gardner must also establish that the animosity resulted in such a deterioration of the attorney-client relationship that the right to the effective assistance of counsel was imperiled. He has not done so.

VI. RIGHT TO STATE-APPOINTED INVESTIGATORS AND EXPERT WITNESSES IN A COLLATERAL ATTACK ON A DEATH PENALTY

A month after filing his petition for post-conviction relief, Gardner requested that expert witnesses and an investigator be appointed at state expense to assist him in prosecuting his petition. Gardner challenges the denial of that request on the ground that it denied him the right to the effective assistance of counsel, due process, meaningful access to the courts, and equal protection under the law. Gardner asserts that the requested assistance was essential to demonstrate that trial counsel provided ineffective assistance by not giving Dr. Heinbecker time to evaluate Gardner more fully and to prepare his testimony.

Utah Code Ann. § 77-32-3 provides for the assignment of counsel at state expense only during the trial proceedings and the first appeal of right or other remedies before or after conviction that the attorney considers to be in the interest of justice. Subsection (2) of § 77-32-3 excludes from the duties of assigned counsel the taking of subsequent discretionary appeals or discretionary writ proceedings: An assigned counsel shall not have the duty or power under this section to represent an indigent defendant in any discretionary appeal or action for a discretionary writ, other than in a meaningful first appeal of right to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the appellate process of this state. Clearly, if a defendant is not entitled to appointed, state-compensated counsel under that statute in a habeas proceeding, he is not entitled to state-compensated experts and investigators absent a specific statutory provision granting that right. No Utah statute grants a defendant such a right.

Furthermore, Pennsylvania v. Finley, 481 U.S. 551, 555-56, 107 S.Ct. 1990, 1993-94, 95 L.Ed.2d 539 (1987), held that a state is not required by due process or equal protection guarantees of access to the courts to provide counsel for indigent prisoners seeking state post-conviction relief. The Court reiterated that position in Murray v. Giarratano, 492 U.S. 1, 10, 109 S.Ct. 2765, 2770-71, 106 L.Ed.2d 1 (1989), with respect to death row inmates. It follows that the denial of state-compensated expert witnesses and investigators in a collateral attack on a conviction does not violate a defendant's federal right to due process, access to the courts, or equal protection.

[26] Nevertheless, there may be extraordinary cases in which a petitioner for habeas corpus might be entitled under the Utah Constitution to state-compensated counsel, expert witnesses, or investigators.FN5 Utah Code Ann. § 77-32-3(3) provides a statutory right, in certain circumstances, for compensation for assigned counsel in a habeas proceeding: An assigned counsel for an indigent defendant shall be entitled to compensation upon the approval of the district court where the original trial was held, upon a showing that the defendant has been denied a constitutional right or that there was newly discovered evidence that would show the defendant's innocence and that the legal services rendered by counsel were other than that required under this act or under a separate fee arrangement and were necessary for the indigent defendant and not for the purpose of delaying the judgment of the original trier of fact.

Thus, if a conviction rests on the denial of a constitutional right or newly discovered evidence that would show the defendant's innocence, an attorney for an indigent defendant is entitled to compensation, even in a post-conviction proceeding. Gardner has not shown that he could not adequately pursue his habeas claims without appointed investigators and expert witnesses. Although he could not afford to have an evaluation that would establish with greater certitude the exact nature of his organic brain syndrome, Dr. Heinbecker's testimony failed to show any possibility that further testing would have shown any mitigating facts. As noted, Dr. Heinbecker's testimony indicated nothing of significance that he would have done differently if he had been given more time to prepare.

We have reviewed the rest of Gardner's claims and find them to be without merit. Gardner is not entitled to a new penalty hearing or appeal. We vacate the trial court's judgment and remand for entry of a judgment consistent with this opinion.

HOWE, J., concurs. ZIMMERMAN, C.J., and DURHAM, J., concur in the result. HALL, J., heard oral arguments but retired before he could vote on the case.

State v. Gardner, 947 P.2d 630 (Utah 1997). (Interlocutory Appeal - Prison Assault)

Prisoners charged in separate incidents with capital felonies for committing aggravated assaults while in prison appealed from rulings of the Third District Court, Salt Lake Division, Michael R. Murphy, J., and the Fifth District Court, Cedar City Department, J. Philip Eves, J., that statute permitting imposition of death penalty was facially constitutional. Cases were consolidated. The Supreme Court, Durham, J., held that imposition of death penalty upon prisoner who commits aggravated assault violates Eighth Amendment in that death penalty is per se a cruel and unusual punishment for crime of aggravated assault that does not result in death. Reversed. Zimmerman, C.J., filed opinion concurring in part and concurring in result. Russon, J., filed dissenting opinion, in which Howe, J., concurred.

DURHAM, Justice:

This is a challenge to the constitutionality of section 76-5-103.5(2)(b) of the Utah Code, which permits the death penalty for aggravated assault by a prisoner. Two defendants charged with capital offenses under the statute have appealed from trial court rulings that the statute is constitutional, and we have consolidated their cases for review.

For purposes of clarity, it should be noted that only a portion of this opinion (part III.B.2) reflects the holding of a majority of the court (Justices Durham, Stewart, and Zimmerman). The remainder of the opinion represents my views and those of Justice Stewart. Justices Russon and Howe dissent from the entire opinion and the result.

I. BACKGROUND

Defendant Ronnie Lee Gardner was convicted of a capital felony, for which he was sentenced to die, and two first degree felonies, for which he was serving sentences of five years to life at the state prison when he allegedly stabbed a fellow inmate multiple times in the face, neck, abdomen, and chest, causing serious bodily injury. Defendant Gary Simmons was serving a sentence of ten years to life for a first degree felony at the Central Utah Correctional Facility in Gunnison, Utah, when he allegedly attacked a prison guard with his fists, causing the guard serious bodily injury.FN1 Gardner and Simmons were both charged with capital felonies under section 76-5-103.5(2)(b) of the Utah Code. That section provides: FN1. Simmons died in prison while this appeal was pending.

(2) Any prisoner serving a sentence for a felony of the first degree who commits aggravated assault is guilty of: ...; (b) a capital felony if serious bodily injury was intentionally caused. Utah Code Ann. § 76-5-103.5(2)(b) (1995).

The two prisoners each filed preliminary motions seeking to have the capital felony provision of the statute declared unconstitutional. The prisoners argued that the death penalty for aggravated assault by a prisoner constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. They also argued that the penalty violates the cruel and unusual punishments clause and the unnecessary rigor clause of article I, section 9 of the Utah Constitution.

* * *

Thus as the State notes, the Court in Coker did observe that “rape by definition does not include the death or even the serious bodily injury to another person.” Ultimately, however, the language referring to seriously bodily injury upon which the State relies was obviated by the Court's rejection of the totality of Georgia's sentencing scheme, which did include aggravated battery to the victim as one of the aggravating circumstances permitting the death penalty. Id. at 598-99, 97 S.Ct. at 2869-70.

The Coker holding leaves no room for the conclusion that any rape, even an “inhuman” one involving torture and aggravated battery but not resulting in death, would constitutionally sustain imposition of the death penalty. We may or may not think the Supreme Court reached the right result in so concluding, but we do not see the persuasiveness of an argument that any aggravated assault, no matter how vicious, could be legally more reprehensible than any rape, no matter how brutal. And under Coker, no rape, “ with or without aggravating circumstances,” can constitutionally qualify for the death penalty when death has not resulted. Id. at 600, 97 S.Ct. at 2870.

We therefore hold that section 76-5-103.5(2)(b) violates the Eighth Amendment to the United States Constitution, and we reverse the district courts on that basis.

Gardner v. Galetka, 568 F.3d 862 (10th Cir. 2009). (Habeas)

Background: Petitioner sought writ of habeas corpus, challenging his state first degree capital murder conviction and death sentence. The United States District Court for the District of Utah, Tena Campbell, J., 2007 WL 1071400, denied relief, and petitioner appealed.

Holdings: The Court of Appeals, McConnell, Circuit Judge, held that: (1) counsel was not constitutionally ineffective during the guilt phase of murder trial by failing to object to rebuttal testimony by officer regarding incriminating statements petitioner made to him while in the hospital; (2) counsel did not act unreasonably in encouraging petitioner to take the stand; (3) petitioner was not prejudiced by his counsel's failure to provide mental health expert with more time to prepare for penalty phase testimony; and (4) although jury instruction was erroneous, state court was not unreasonable in finding error was harmless. Affirmed.

McCONNELL, Circuit Judge.

While Petitioner-Appellant Ronnie Lee Gardner was being escorted from prison to the state district court in Salt Lake City in 1985 for a hearing on a charge of second degree murder, an accomplice handed him a gun. At point-blank range, Mr. Gardner shot Michael Burdell, an attorney standing inside the court's archives room. Mr. Burdell died, and Mr. Gardner was convicted of first degree capital murder and sentenced to death.

I. BACKGROUND

Our recitation of the facts and lengthy case history is based largely on United State Magistrate Judge Samuel Alba's thorough Report and Recommendation, which was adopted with only slight modifications by the Utah District Court in Gardner v. Galetka, No. 2:95-CV-846-TC, 2007 WL 1071398, 2007 U.S. Dist. LEXIS 25643 (D.Utah Apr. 5, 2007); see also State v. Gardner, 789 P.2d 273 (Utah 1989) ( Gardner I ) (summarizing the facts of this case).

A. The Crime

On April 2, 1985, guards transported Mr. Gardner from the maximum security unit of the Utah State Prison to the Metropolitan Hall of Justice in Salt Lake City to appear at a hearing on a second degree murder charge. As he entered the basement lobby of the courthouse, a female accomplice handed him a gun. Mr. Gardner pointed the gun at his guards, who quickly retreated to the parking lot. During this encounter, he exchanged gunfire with one of the guards and was shot, apparently in the chest.

Looking for a way out of the building, a wounded Mr. Gardner entered the archives room. A court clerk, a prison officer, and three attorneys were inside. Mr. Gardner said he had been shot, then walked back out of the archives room. When Mr. Gardner went back into the lobby, two of the attorneys, Michael Burdell and Robert Macri, attempted to hide behind the open door to the archives room. Mr. Gardner reentered the archives room with his gun held in front of him. He saw the two attorneys hiding behind the door and stopped in front of them. Standing about one-and-a-half to two feet in front of Mr. Macri, Mr. Gardner tightened his grip on the gun and pointed it at him. Mr. Burdell said, “Oh, my God.” Mr. Gardner said, “Oh Fu-” and then moved the gun away from Mr. Macri to Mr. Burdell. Mr. Macri fled out into the lobby and Mr. Gardner fatally shot Mr. Burdell in the head after what one witness described as a “definite pause.” Vol. XLVII, State Ct. Tr. 942. Mr. Gardner then fired at Mr. Burdell a second time.

Mr. Gardner forced the prison officer in the archives room to accompany him out to a stairwell leading to the second floor. While Mr. Gardner crossed the lobby, a uniformed bailiff, Nick Kirk, came down the stairs to investigate the commotion. Mr. Gardner shot and seriously wounded Mr. Kirk and then proceeded up the stairs. On the next floor, Mr. Gardner forced a vending machine serviceman to accompany him outside of the building. As soon as Mr. Gardner was outside, the serviceman broke free and dived through a teller's window inside the building. In the parking lot and surrounded by police, Mr. Gardner threw down his gun and surrendered.

B. Trial Proceedings and Direct Appeal

In 1985, Mr. Gardner was tried before a jury in the Third Judicial District Court in Salt Lake County, Utah. The jury convicted Mr. Gardner of first degree murder, attempted first degree murder, aggravated kidnaping, escape, and possession of a dangerous weapon by an incarcerated person. Only the first of these convictions is now at issue. The sole theory of the defense as to this charge was that he lacked the intent to kill Mr. Burdell-that the killing was either an accident, or at most, done with reckless disregard to human life.

On direct appeal, Mr. Gardner made the following claims of error: (1) the district court judge abused his discretion in denying him a change of venue, (2) the judge should have recused himself, (3) the death penalty laws in Utah are unconstitutional, (4) the use of his prior felony as an aggravating circumstance violated his due process rights, (5) he was improperly denied a challenge for cause, (6) excessive security in the courtroom denied his right to a fair trial, (7) the judge violated his Sixth Amendment right to confrontation when he cut off his recross-examination of a witness, (8) corrections officer Wayne Jorgensen testified about statements taken in violation of Miranda and Massiah, (9) the district court gave an erroneous jury instruction on manslaughter, (10) the district court gave an erroneous oral instruction to the jury regarding the order it should consider the various offenses, (11) the district court improperly denied his motion for directed verdict, (12) the district court erred in admitting evidence of a previous homicide he had committed as an aggravating factor, (13) his sentence was disproportionate compared to those given in similar cases, (14) the government engaged in prosecutorial misconduct, and (15) his counsel was ineffective in failing to object to the testimony of Officer Jorgensen, Dr. Heinbecker, and Mr. Fuchs. The Utah Supreme Court denied relief on all claims, Gardner I, 789 P.2d at 276, and the United States Supreme Court denied Mr. Gardner's petition for a writ of certiorari. 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 965 (1990).

C. State Post-Conviction Proceedings

Mr. Gardner then sought post-conviction relief in state court. The Utah district court addressed all of his claims on the merits, and ruled that Mr. Gardner had been denied effective assistance of counsel both during the penalty phase and on appeal. Gardner v. Holden, 888 P.2d 608, 617, 619 (Utah 1994) ( Gardner II ). According to the court, trial counsel did not give a defense psychiatrist enough time to test and evaluate Mr. Gardner, and appellate counsel did not act as independent counsel and failed to adequately research and brief issues on appeal. Id. at 619, 620. The court held that these deficiencies required a new penalty hearing and a new appeal. It rejected Mr. Gardner's other claims. Both parties appealed.

The Utah Supreme Court reversed the district court's holding that Mr. Gardner received ineffective assistance of counsel, and affirmed its rejection of Mr. Gardner's other claims. Gardner II, 888 P.2d 608. First, the court rejected six claims that could have been raised on direct appeal but were not: (1) error by the trial court in admitting hypnotically enhanced testimony; (2) error by the trial court in not advising Gardner of his right to remain silent and not testify; (3) violation of Gardner's right to be present at all the hearings in his case; (4) consideration by the jury of impermissible information about the victim; (5) failure to instruct the jury on all the statutory mitigating circumstances in the penalty phase; and (6) failure to instruct the jury in the penalty phase that the existence of aggravating factors had to be found beyond a reasonable doubt before they could be considered in deciding to impose the death penalty. Id. at 614.

The court summarily rejected four of Mr. Gardner's claims of ineffective assistance during the guilt phase. First, the court held that Mr. Gardner's claim that counsel were ineffective because he was coerced to testify was addressed, in essence, on direct appeal when the court rejected Mr. Gardner's assertion that admitting his prior inconsistent statements violated his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Id. at 615. Second, Mr. Gardner's claim that his counsel were ineffective because they elicited testimony from him about his past convictions of violent crimes was disposed of when the court held on direct appeal that it was error to admit the evidence of his other violent crimes but not prejudicial. Id. at 616. Third, Mr. Gardner's claim that counsel were ineffective in failing to request a bifurcated trial was essentially the same as the claim raised and addressed on direct appeal: whether it was error not to hold a bifurcated hearing. Id. Finally, the court held that Mr. Gardner's claim that trial counsel were ineffective because they failed to clarify for the jury that Mr. Gardner was shot in the chest and lung rather than in the shoulder was frivolous. Id.

The Utah Supreme Court addressed Mr. Gardner's remaining claims on the merits. The court reversed the district court's holding as to ineffective assistance of trial counsel at the penalty phase, holding that Mr. Gardner was not prejudiced by counsel's failure to give Dr. Heinbecker, a defense psychologist, enough time to prepare before the penalty phase. Id. at 619. While the district court ruled that trial counsel had a conflict of interest but that Mr. Gardner waived his right to raise any such conflict, the Utah Supreme Court held that he was not denied effective assistance on account of any conflicts of interest with his trial attorneys. Id. at 620-621. The Utah Supreme Court also reversed the district court's holding that appellate counsel had failed to research and investigate the trial record for appealable issues, concluding that “habeas counsel ... apprised [the court] of no issues that should have been raised on the first appeal.” Id. at 620. The court held that it did not condone appellate counsel's preparation techniques, but no prejudice resulted therefrom. Id. The court affirmed the district court's holding that Mr. Gardner's appellate counsel lacked any conflicts of interest in representing him. The court also rejected Mr. Gardner's claim that the trial court's failure to appoint expert witnesses and an investigator at the state's expense violated his right to effective assistance of counsel, due process, meaningful access to the courts, and equal protection. Id. at 622-23.

Again, the United States Supreme Court denied review. 516 U.S. 828, 116 S.Ct. 97, 133 L.Ed.2d 52 (1995). Ten years had passed since Mr. Gardner's crime and conviction.

D. Federal Habeas Proceedings

In 1997, Mr. Gardner filed a petition for writ of habeas corpus in the United States District Court for the District of Utah. Two years after filing his habeas petition, Mr. Gardner sought to amend his petition to raise a new ineffective assistance claim based on appellate counsel's failure to object to the jury instruction that defined the meaning of the term “knowingly.” As discussed below, this instruction was incorrect because it addressed elements of the definition in the disjunctive rather than the conjunctive. This claim had not been raised in state court on direct appeal or during the state post-conviction proceedings. The district court allowed Mr. Gardner to amend his petition, but held the added claim in abeyance until he had exhausted state avenues for relief on the claim. Accordingly, Mr. Gardner filed a second petition for post-conviction relief in state court.

While the jury instruction claim proceeded in state court, in 2003 the magistrate judge issued a report and recommendation addressing and rejecting Mr. Gardner's other habeas claims. The district court adopted the recommendation with slight modifications. The court rejected all of Mr. Gardner's ineffective assistance claims on various grounds. The court did not address the deficiency prong of Mr. Gardner's ineffective assistance claims based on his counsel's failure to object to Officer Jorgensen's testimony and failure to fully prepare and present mental health evidence at the guilt phase, instead holding there was no prejudice. The court held that Mr. Gardner failed to establish that his trial counsel had a conflict of interest. Moreover, it was not unreasonable for counsel to have Mr. Gardner testify at the guilt phase, nor was it unreasonable for counsel to rely on Mr. Barton's examination of the gun. Finally, the court rejected as unsupported Mr. Gardner's claims of ineffective assistance for stipulating to his prior convictions and failing to request a bifurcated proceeding.

As to his counsel's performance at the penalty phase, the court held that they acted deficiently in failing to prepare and present mental health evidence, but that no prejudice resulted. The court also rejected Mr. Gardner's ineffective appellate counsel claim, finding that there was no conflict of interest and that none of the issues they failed to raise were meritorious.

The court then addressed Mr. Gardner's remaining claims. The court held that Mr. Gardner failed to establish prejudice resulting from the judge's denial of his motion to change venue, the admission of Mr. Macri's post-hypnosis testimony, or the decision not to bifurcate the trial. The court also rejected Mr. Gardner's claims concerning judicial recusal, excessive security, prosecutorial misconduct, limitation of cross-examination, notification of the right not to testify, a lesser included offense instruction, exclusion of mitigating evidence during the penalty phase, a jury instruction about mitigating circumstances and aggravation proof, the alleged presumption of death, and the alleged failure to narrow the class of people eligible for the death penalty.

Back in state court, the Utah district court held that Mr. Gardner's belated claim of appellate ineffectiveness based on the faulty jury instruction was procedurally barred. The Utah Supreme Court affirmed. Gardner v. Galetka, 94 P.3d 263 (Utah 2004) ( Gardner III ). On return to federal court, the district court disagreed, holding that the claim was not procedurally barred; however, the court denied this claim for lack of prejudice. Gardner, 2007 WL 1071398, at 10, 2007 U.S. Dist. LEXIS 25651, at *30-31. Mr. Gardner timely appealed both the order rejecting his claim of appellate ineffectiveness based on the faulty jury instruction and the order rejecting all other claims. At this point, twenty-two years had passed since his 1985 crime and conviction.

II. DISCUSSION

Since Congress's 1996 revision of the standards applicable to federal habeas review of state court convictions, the Anti-terrorism and Effective Death Penalty Act (“AEDPA”), the role of the federal courts has become that of a back-stop or safety net to ensure that state courts applied the constitutional standards in effect at the time (as enunciated by the Supreme Court) and did so reasonably. Habeas review is no longer an occasion for refinement or modification of constitutional principles or for federal court second-guessing of state court application of constitutional law, so long as the state court addressed the merits of any properly presented federal constitutional claim, applied correct standards, and reached a decision that is within the zone of reasonableness. Under this statutory framework, a state prisoner seeking federal habeas review is entitled to relief only if he can demonstrate that the state adjudication on the merits “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) and (2). Unless otherwise stated below, we review Mr. Gardner's claims under this standard of review. Our review of decisions by the federal district court on questions of law is de novo; our review of factual findings, if any, is for clear error. United States v. Sims, 428 F.3d 945, 960 (10th Cir.2005).

A. Ineffective Assistance at Guilt Phase

Mr. Gardner's sole defense at the guilt phase was that he lacked the intent to kill Mr. Burdell. He argued that the killing was either an accident, or at most, done with reckless disregard to human life. He now contends that his counsel was unconstitutionally deficient in four areas in making this argument at trial.

1. Failure to Adequately Investigate Mr. Gardner's Mental Health

Prior to the guilt phase of the trial, defense counsel engaged a psychologist, Dr. Rindflesh, to examine Mr. Gardner. The examination took an hour and a half. See Mag. Rep. 63. Dr. Rindflesh's subsequent report indicated that there were no signs of a major psychological disorder now or in the past, suggesting further investigation would be fruitless. Id. at 73. But see id. at 74 (noting that Dr. Rindflesh wrote in his report, “Perhaps an interview in a more open setting will be possible in the future,” suggesting that another examination might have been preferable). Mr. Gardner argues that trial counsel failed to undertake a sufficient investigation of his mental health issues to support his lack of intent defense.

In his state post-conviction petition, Mr. Gardner argued that his counsel failed to adequately investigate and present evidence that he had been shot in the chest rather than in the shoulder, and to present evidence of the wound's potential effect on his mental state. Gardner II, 888 P.2d at 616. The court rejected this claim as frivolous. Id. In his federal habeas petition, Mr. Gardner argued that his counsel was ineffective for inadequately investigating both ballistics and mental health evidence in preparation for the guilt phase. The magistrate judge rejected his argument, finding that defense counsel's reliance on Mr. Barton's examination of the gun was not deficient, and even if counsel's failure to investigate Mr. Gardner's mental health more fully was deficient, it was not prejudicial. Mr. Gardner objected to the magistrate judge's finding that his counsel at the guilt phase adequately investigated the defense that Mr. Gardner did not intend to kill Mr. Burdell. This objection to the magistrate judge's report, however, focused solely on his counsel's failure to adequately investigate the murder weapon. Thus, Mr. Gardner did not object to his counsel's failure to investigate his mental health in preparation for the guilt phase. Because Mr. Gardner failed to make this objection to the magistrate judge's report, this claim has been waived and will not be considered. See Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.2008) (applying the firm waiver rule).

Even if Mr. Gardner had properly raised this issue in district court, we would conclude that his counsel was not constitutionally deficient. After all, a psychologist did evaluate Mr. Gardner, albeit for a short time, and his report indicated that he suffered from no major psychiatric disorder. Mag. Rep. 73; see Bell v. Thompson, 545 U.S. 794, 809-10, 125 S.Ct. 2825, 162 L.Ed.2d 693 (2005) (stating it would be an “uphill battle” for a defendant to show the need for further mental health investigation when two experts had concluded he was not mentally ill); Wilson v. Sirmons, 536 F.3d 1064, 1089 (10th Cir.2008) (“[I]n many situations, the expert will know better than counsel what evidence is pertinent to mental health diagnoses and will be more equipped to determine what avenues of investigation are likely to result in fruitful information”). Nothing in Dr. Rindflesh's report indicated that further evaluation would result in evidence supporting Mr. Gardner's insanity defense. While Dr. Rindflesh suggested the possibility of “an interview in a more open setting” sometime in the future, he indicated that any additional interviews would help him better understand only Mr. Gardner's impulsiveness and ability to feel remorse, neither of which would shed light on whether Mr. Gardner understood what he was doing when he shot Mr. Burdell. Under these circumstances, we cannot regard counsel's failure to pursue this course as so “completely unreasonable,” Wilson, 536 F.3d at 1083, as to be constitutionally deficient. After all, there were substantial strategic reasons not to pursue this line of defense before the jury: it would have opened the door to damaging evidence regarding the violent acts he engaged in during prior offenses while uncontestedly in control of his faculties. This suggests that defense counsel made an objectively reasonable strategic decision in not investigating further or presenting psychological evidence at trial.

Moreover, even if defense counsel were deficient in not having a more elaborate evaluation conducted, no prejudice resulted from his failure to investigate further. A psychologist who later examined Mr. Gardner, Dr. Heinbecker, testified that Mr. Gardner's psychological state might lead him to act on “automatic pilot” during stressful situations. Mag. Rep. 69. Such testimony might support an irresistible impulse defense, but Utah does not recognize such a defense. See State v. Herrera, 993 P.2d 854, 861-62 (Utah 1999) (noting that a mental disorder serves as a defense to a murder only if it prevents a person from understanding that he is killing a human being). Thus, under these circumstances, defense counsel likely was not deficient, and even if he was, no prejudice resulted.

2. Failure to Present Ballistics Evidence

Mr. Gardner claimed in the state court post-conviction proceedings that his counsel was ineffective for failing to offer evidence that would have cast doubt on whether he had intended to kill Mr. Burdell. His theory was that at the time he pulled the trigger on Mr. Burdell, he was in shock as a result of having been shot by one of the courthouse guards. Trial counsel was ineffective, he argued, because counsel implied to the jury that Mr. Gardner had been shot in the shoulder, when in fact he suffered much more serious wounds to his chest and lungs. Mr. Gardener contended that an accurate account of his injuries would have better shown the jury the shock that he was experiencing, and that this would have a bearing on his mens rea. The Utah Supreme Court rejected this claim as frivolous. Gardner II, 888 P.2d at 616.

In his federal habeas petition and on appeal, Mr. Gardner similarly argued that trial counsel was ineffective for failing to offer evidence that would have cast doubt on whether he had intended to kill Mr. Burdell, but the basis for that argument has shifted from misdescription of his wound to counsel's failure to undertake a thorough investigation of the murder weapon. He claims that counsel failed to engage a forensic laboratory to investigate the inner workings of the gun. A subsequent investigation, in 1999, found that the gun had a faulty safety device. Mr. Gardner contends that if counsel had properly investigated the weapon at the time, he could have used this evidence to support an inference that the gun went off accidentally, or upon such slight finger pressure that the firing was not intentional.

Contrary to Mr. Gardner's argument, this claim is not substantially the same as the one he raised in state court, but is based on an entirely different factual predicate. The failure to investigate the murder weapon is not the same as the failure to present evidence to the jury regarding the nature of his wounds. Because this claim could have been raised in state court and was not, Mr. Gardner is now procedurally barred from raising it at this late stage. See Magar v. Parker, 490 F.3d 816, 818 (10th Cir.2007) (noting that habeas petitioners seeking relief in federal court must first exhaust all available state court remedies); Cf. Duffield, 545 F.3d at 1238 (discussing importance of raising issues in a timely manner to avoid waiver).

Even if we were to hold that this claim was not procedurally barred, Mr. Gardner would still not be entitled to relief. First, defense counsel did not act deficiently. In addition to reviewing the examination of the weapon conducted by the Utah State Crime Laboratory, Mr. Gardner's lawyers had the gun examined by Edward Barton, a defense investigator with ballistics expertise. He concluded that it took two pounds of pressure to pull the trigger, and reported that this was average for a single action handgun. The gun would “not be classified as having a hair trigger.” He also stated that the hammer had three stop positions, all in good working order. Mr. Gardner does not explain why his counsel acted deficiently in relying on Mr. Barton's investigation. Nothing in Mr. Barton's report suggested that counsel should have had the gun analyzed further.

Moreover, no prejudice resulted from any alleged deficiencies. At trial, the state's expert testified that the gun had to be cocked before it could be fired. The post-trial examination of the gun did not indicate it was faulty in any material way. A ballistics expert testifying in the 1999 federal hearing confirmed that the gun did not have a hair trigger. He indicated that he could not get the gun to fire accidentally through “drop tests.” Collectively, this evidence strongly suggests that the gun did not go off accidentally, but rather was intentionally cocked and fired twice at Mr. Burdell. While the 1999 expert testified that the gun had a malfunctioning safety device that could have caused the gun to fire if Mr. Gardner had pulled the trigger and released it before the hammer actually fell, Mr. Gardner has put forth no evidence to show that he tried to release the trigger after pulling it. In other words, even if defense counsel had consulted another investigator before trial, the elicited information would not have materially assisted Mr. Gardner's defense.

3. Failure to Object to Officer Jorgensen's Testimony

Mr. Gardner also contends that trial counsel was ineffective during the guilt phase by failing to object to testimony by Officer Wayne Jorgensen, presented on rebuttal, regarding incriminating statements Mr. Gardner made to him while in the hospital. According to Officer Jorgensen, he guarded Mr. Gardner while he was in the hospital on two occasions. On the first night, Mr. Gardner initiated a conversation with him and volunteered information about Mr. Burdell's murder. He kept talking until Officer Jorgensen cut him off. On the second occasion, Mr. Gardner again initiated conversation with Officer Jorgensen and they “got talking” about Mr. Burdell's murder. Officer Jorgensen asked if Mr. Gardner would have shot him [i.e., Officer Jorgensen], to which Mr. Gardner responded, “Hell, man, I had to get away, I didn't care who it was,” and “Hey, I had to do what I had to do.” When Officer Jorgensen asked Mr. Gardner why he shot Mr. Burdell, Mr. Gardner said it was because he thought Mr. Burdell was going to “jump on [him] and stop [him].” Officer Jorgensen filed no incident reports about these statements, and Mr. Gardner later denied ever making them.

Mr. Gardner claims that his counsel should have moved to suppress Mr. Jorgensen's testimony about Mr. Gardner's alleged statements because they were involuntary under Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), unreliable, and elicited in violation of Miranda and his Sixth Amendment right to counsel. On direct appeal, the Utah Supreme Court did not address whether trial counsel was deficient for failing to challenge the testimony, but held that no prejudice resulted because there was overwhelming evidence of Mr. Gardner's intent to shoot Mr. Burdell. Gardner I, 789 P.2d at 288. We do not regard this conclusion as unreasonable, and therefore hold, under AEDPA's deferential standard, that this claim does not warrant federal habeas relief.

The Utah Supreme Court correctly found that there was ample evidence, wholly apart from Officer Jorgensen's testimony, that Mr. Gardner's killing of Mr. Burdell was intentional. Mr. Gardner himself admitted asking for a loaded gun because an unloaded gun was useless; a witness testified that he saw him pause before shooting Mr. Burdell; another witness testified that Mr. Gardner had pointed the gun at him but then turned the gun and shot Mr. Burdell instead; and Mr. Gardner fired at Mr. Burdell twice, which required him to both cock the gun and pull the trigger twice. This overwhelming evidence of guilt would have come in and would have necessitated a finding of intent, even if Officer Jorgensen's statements had been suppressed. Thus, no prejudice resulted.

Even if we were to find that the court acted unreasonably in finding that no prejudice resulted for the alleged deficiencies, defense counsel did not act deficiently in any of the four ways Mr. Gardner suggests. As we discuss below, the statements did not violate Miranda or Massiah, counsel could not prove the statements were given involuntarily, the statements were reliable, and counsel acted reasonably in calling Mr. Gardner to the stand. In reaching those conclusions, we bear in mind that a reviewing court must be “highly deferential” to counsel's decisions. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “To prove deficient performance, petitioner must overcome the presumption that counsel's conduct was not constitutionally defective.” Wallace v. Ward, 191 F.3d 1235, 1247 (10th Cir.1999). “Counsel's performance must be ‘completely unreasonable’ to be constitutionally ineffective, not ‘merely wrong.’ ” Wilson, 536 F.3d at 1083 (quoting Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir.1997)).

a. Miranda and Massiah Violations

Mr. Gardner claims his counsel acted deficiently in failing to object to Officer Jorgensen's statements on Miranda or Massiah grounds. Those cases stand for the proposition that the Fifth and Sixth Amendments afford individuals the right to counsel before and after indictment while being questioned by government officials. It is evident that admission of Officer Jorgensen's testimony, on rebuttal, did not violate those principles.

First, it is not clear that Officer Jorgensen initiated the conversations with Mr. Gardner. The officer testified that the two men “got talking,” and Mr. Gardner, who is the only other person present at the time, does not testify that Officer Jorgensen initiated the conversation. Instead, Mr. Gardner claims that the conversations did not take place at all. If Mr. Gardner volunteered the information to Officer Jorgensen without any action on the part of the state, there would be no constitutional violation in introducing it into evidence. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (explaining that Miranda applies only where questioning is initiated by law enforcement); see also Pickens v. Gibson, 206 F.3d 988, 994-95 (10th Cir.2000) (statements obtained in violation of Miranda are admissible where defendant re-initiated communication). We are reluctant to rely entirely on this ground, however, because no lower court has reached any factual finding regarding Officer Jorgensen's credibility; Mr. Gardner does not confirm or admit that the officer did not initiate the conversation; and there is evidence in the record that casts doubt on Officer Jorgensen's testimony, including the fact that he filed no incident report at the time.

Quite apart from whether the state initiated the conversations, however, introduction of the testimony could not have violated Miranda and Massiah because these decisions apply only to the introduction of evidence as part of the prosecution's case in chief and do not prevent statements that are otherwise inadmissible from being admitted to contradict a witness' testimony on rebuttal. Harris v. New York, 401 U.S. 222, 225-26, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). As the Supreme Court held in Harris, Miranda and Massiah prevent the affirmative use of uncounseled statements but do not license a defendant to perjure himself without threat of refutation using his prior statements. Id. at 226, 91 S.Ct. 643; see also Kansas v. Ventris, --- U.S. ----, 129 S.Ct. 1841, 1846, 173 L.Ed.2d 801 (2009) (holding that testimony elicited in violation of Sixth Amendment is admissible to impeach). Here, where Mr. Gardner testified that he did not know what was happening when he killed Mr. Burdell, the jury was entitled to learn of his statements to Officer Jorgensen that he “had to get away,” that he did “what I had to do,” and that he shot Mr. Burdell because he thought Mr. Burdell was going to “jump on [him] and stop [him].” To be sure, the jury might have disbelieved Officer Jorgensen's account, but that does not make the testimony inadmissible under Miranda and Massiah.

Even assuming the statements were admissible on rebuttal, Mr. Gardner argues that his counsel had a duty to request an instruction limiting the use of the testimony to the issue of credibility. On direct appeal, the Utah Supreme Court rejected this argument, stating that the failure to request the instruction was not “manifest error.” Gardner I, 789 P.2d at 282. Not requesting a limiting instruction could have been a reasonable tactical decision to keep the damaging statement from being reiterated to the jury, and thus not objectively unreasonable.

Accordingly, Mr. Gardner's counsel did not act deficiently in failing to object to Officer Jorgensen's testimony on Fifth and Sixth Amendment grounds.

b. Voluntariness

Mr. Gardner next claims his statements were inadmissible because he was under medication at the time and the statements were therefore not given voluntarily. The Utah Supreme Court did not address this claim, but after conducting an evidentiary hearing the federal district court concluded that it was reasonable for trial counsel not to have raised this objection. At the 1999 federal hearing, a psychiatrist testified that Mr. Gardner was on Halcion, a short term treatment for insomnia, on the night he supposedly made the statements. Mag. Rep. 44. The psychiatrist testified that the drug could cause amnesia, but that there was only a remote chance it caused Mr. Gardner to forget making the statement. If the statement had been made while under the influence of Halcion, he would not have been fully awake or conscious of what he was doing, and the combination of Halcion and anti-anxiety medication could have loosened up Mr. Gardner's inhibitions. Another psychiatrist testified that the dose of Halcion administered to Mr. Gardner was very unlikely to have caused amnesia.

We conclude that counsel acted reasonably in concluding the statements to Officer Jorgensen were voluntary. A statement is inadmissible if it is not “the product of a rational intellect and free will.” Mincey, 437 U.S. at 398, 98 S.Ct. 2408. Mr. Gardner's own testimony suggests his mental capacity was not significantly affected by Halcion. He claims to remember the night clearly. He remembers being in the hospital, that Officer Jorgensen was guarding him in the room, and that he did not make the statement. Moreover, Officer Jorgensen testified that Mr. Gardner did not appear to be medicated when he gave the statements. Taken together, the district court concluded that this evidence could have led counsel reasonably to believe that the statement could not be suppressed as involuntary.

There is a significant factual component to that conclusion, which is not plainly erroneous and must therefore guide this court's analysis of the issue. In light of the facts as found by the district court, and bearing in mind the presumption that counsel's performance was not constitutionally defective, we agree with that court that counsel acted reasonably in not raising the voluntariness objection to Officer Jorgensen's testimony.

c. Unreliability

Mr. Gardner argues that, at the very least, Officer Jorgensen's testimony about his alleged statements was so unreliable that his counsel should have objected under Utah Rule of Evidence 403. Under Rule 403, evidence can be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” This particular objection was not raised in state court, but was raised in his federal habeas petition. There is no apparent reason why Mr. Gardner could not have raised his Rule 403 argument in state court, so Mr. Gardner is procedurally barred from raising the issue now. Magar, 490 F.3d at 818.

Even if we were to address this issue, however, we would agree with the decision of the magistrate judge and the district court to reject the argument. As the magistrate judge noted, “Rule 403 is not to be used to exclude testimony that a trial judge does not find credible because credibility questions are the prerogative of a jury.” Mag. Rep. 50. We defer to the factfinder's credibility determinations, as it is in the best position to evaluate such matters. United States v. Barron-Cabrera, 119 F.3d 1454, 1457 (10th Cir.1997). Thus, defense counsel did not act unreasonably in failing to object on Rule 403 grounds.

4. Counsel's Decision to Encourage Mr. Gardner to Testify

Finally, Mr. Gardner contends that trial counsel was ineffective because he encouraged Mr. Gardner to take the stand, which proved injurious to his defense. In the state post-conviction proceedings, Mr. Gardner argued that his counsel was ineffective for coercing him to testify. The court dismissed the claim, holding that the issue had been addressed, in essence, on direct appeal when the court rejected Mr. Gardner's assertion that admitting his prior inconsistent statements violated his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Gardner II, 888 P.2d at 615. Mr. Gardner argued in his federal habeas petition that his counsel was ineffective in calling him to testify. The district court disagreed, finding counsel's performance was not deficient. We affirm and hold that counsel's decision on this point was within the reasonable range of effective trial strategy.

The theory of the defense was that Mr. Gardner had planned only to escape, not to kill anyone; once he was shot, he did not know what was going on, and while in a dazed state, saw movement in the archives room and his gun discharged unintentionally. Mr. Gardner argues that his counsel acted unreasonably in calling him to testify because his testimony did not support this theory and that calling him opened the door for Officer Jorgensen's testimony on rebuttal. He also claims that his counsel knew he would say that he could not remember the immediate circumstances surrounding Mr. Burdell's death and that he would refuse to name his accomplice.

After full examination of the record, we agree with the district court that defense counsel did not act unreasonably in calling Mr. Gardner to the stand. Apart from Mr. Gardner's own testimony, the defense had little evidence to support its theory. As already discussed, there was little evidence to support a major psychological disorder that could have prevented Mr. Gardner from having the requisite intent, and there was also little evidence suggesting that the gun went off accidentally. Thus, even if Mr. Gardner's own testimony contained a few damaging statements, a reasonable attorney could easily conclude that it was, on balance, the best hope of providing evidence that could support a verdict of acquittal.

5. Cumulative Effect

Though none of these alleged errors itself warrants reversal, we are required to look at the cumulative effect of counsel's errors. Duckett v. Mullin, 306 F.3d 982, 992 (10th Cir.2002). “A cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990) (citation omitted). The harmlessness inquiry for cumulative error is the same as the inquiry for individual error: were the defendant's substantial rights affected? Id. at 1470. We hold that even if any of the claims of ineffective assistance during the guilt phase have merit, the strong evidence of Mr. Gardner's intent to shoot Mr. Burdell would have still convinced the jury of his guilt. Mr. Gardner had an extensive history of violence and had previously attempted to escape from an industrial school and state prison facilities. No expert testimony supported the argument that Mr. Gardner's mental condition prevented him from understanding his actions and their intended result. No evidence was presented that established the gun was faulty in any material way. In addition, Mr. Gardner shot Mr. Burdell twice and later admitted that he asked for a loaded gun because an unloaded gun would have been useless. All of these facts strongly suggest he had the intent to kill Mr. Burdell. Thus, reversal is not warranted on the cumulative effect of counsel's errors.

B. Ineffective Assistance at Penalty Phase

Mr. Gardner argues that his counsel acted deficiently in failing to adequately investigate and present evidence of Mr. Gardner's social and mental history during the penalty phase. The state district court during post-conviction proceedings addressed a version of this argument, holding that Mr. Gardner was denied effective assistance when his counsel failed to give the defense psychiatrist, Dr. Heinbecker, more time to prepare for the penalty phase. The Utah Supreme Court reversed, holding that Mr. Gardner was not prejudiced by his counsel's failure to give the psychiatrist more time to prepare. Gardner II, 888 P.2d at 619. The court noted that Dr. Heinbecker had not indicated that more preparation time would have led to more information favoring Mr. Gardner. Id. In federal court, the magistrate judge similarly concluded that counsel was deficient at the penalty phase but that no prejudice resulted. Unlike the magistrate judge, the district court did not address the deficiency issue, concluding that there was no prejudice.

1. Standard of Review

Typically we would address the prejudice issue under deferential AEDPA standards because the issue was addressed on the merits by the Utah Supreme Court. Oddly, however, in oral argument the state asserted, against its interest, that the issue should be reviewed de novo. Aple. Br. 3. The state reached this conclusion by applying Utah Code Annotated §§ 78B-9-109 and -202(2), as well as our decision in Wilson v. Sirmons, 536 F.3d 1064 (10th Cir.2008). Section 78B-9-109(1) provides that “the court may, upon the request of an indigent petitioner, appoint counsel on a pro bono basis to represent the petitioner in the post-conviction court or on post-conviction appeal.” In determining whether to appoint counsel, the court is to consider “whether the petition or the appeal contains factual allegations that will require an evidentiary hearing,” and “whether the petition involves complicated issues of law or fact that require the assistance of counsel for proper adjudication.” Utah Code Ann. § 78B-9-109(2). Utah Rule of Criminal Procedure 8(e) sets forth the requirements of counsel appointed in these circumstances.

The state relies on our reasoning in Wilson and the rule laid out above in conceding that AEDPA deference does not apply. We stated in Wilson that “when a state court's disposition of a mixed question of law and fact, including a claim of ineffective assistance, is based on an incomplete factual record, through no fault of the defendant, and the complete factual record has since been developed and is before this Court, we apply de novo review to our evaluation of the underlying claim.” 536 F.3d at 1079. Here, the state assumed that where the defendant did not have the resources to develop a full factual record on this issue, it was “no fault of the defendant” that an incomplete factual record existed at the state court level. As a result, the state argues that we should apply de novo review.

There is a key difference, however, between Wilson and this case. In Wilson, the prisoner had a federal right to an evidentiary hearing, which was denied by the state court despite his diligence in pursuing the right. FN1 Here, however, any right Mr. Gardner may have had to funding to develop a factual record is a product of state law, not federal law. Federal habeas review is confined to denials of federal rights, see 28 U.S.C. § 2254(a), and it is therefore irrelevant at this stage whether or not Mr. Gardner was denied the rights to which he may have been entitled under state law. Our decision in Wilson therefore does not have the implications for our standard of review in this case that the state seems to think.

FN1. Specifically, the prisoner had a right to an evidentiary hearing if he could show that his “allegations, if true and not contravened by the existing factual record, would entitle him to habeas relief.” Wilson, 536 F.3d at 1081. Under Oklahoma procedure rules, however, a defendant raising an ineffective assistance claim based on non-record evidence has a right to an evidentiary hearing only if he can show by “clear and convincing evidence there is a strong possibility trial counsel was ineffective.” Id. at 1080. Because the state court denied the prisoner an evidentiary hearing on the latter standard, the Wilson court held that he was denied a federal right. That holding is presently under review by the en banc court. See Wilson v. Sirmons, 2008 WL 5170707, 2008 U.S.App. LEXIS 27448 (10th Cir. Dec. 2, 2008). The result of that rehearing proceeding cannot affect this case, however, because whether or not Wilson was denied a federal right, there is no argument that Mr. Gardner was.

The state's candid (if unwarranted) concession raises a related issue: can the congressionally mandated deferential standard of review be waived by counsel? In other words, should this court apply a standard of review more searching than that dictated by AEDPA on account of the fact that the state's appellate lawyers mistakenly believed that the more searching standard applies?

It is well established that states may waive some of AEDPA's provisions. See, e.g., Boston v. Weber, 525 F.3d 622, 626 (8th Cir.2008) (holding that if a state intelligently chooses to waive a statute of limitations defense in a habeas case, a district court is not at liberty to disregard that choice); Torres v. Senkowski, 316 F.3d 147 (2d Cir.2003) (holding that a state cannot waive AEDPA's requirement that circuit courts rather than district courts must authorize successive habeas motions or applications because the requirement is jurisdictional); see also Note, Rewriting the Great Writ: Standards of Review for Habeas Corpus Under the New 28 U.S.C. § 2254, 110 Harv. L.Rev. 1868, 1871 n. 26 (1997) (explaining that AEDPA requires “federal courts to find an express waiver of exhaustion [by the state] before taking jurisdiction over an incompletely exhausted state appeal”). This court has apparently never addressed whether the state can waive the standard of review under AEDPA. Other courts of appeal have, however, done so, and all have concluded that the standard of review under AEDPA cannot be waived by the parties. Brown v. Smith, 551 F.3d 424, 428 n. 2 (6th Cir.2008); Eze v. Senkowski, 321 F.3d 110, 121 (2d Cir.2003); Worth v. Tyer, 276 F.3d 249, 262 n. 4 (7th Cir.2001).

We agree with our sibling circuits that the correct standard of review under AEDPA is not waivable. It is, unlike exhaustion, an unavoidable legal question we must ask, and answer, in every case. See Eze, 321 F.3d at 121 (“AEDPA's standard of review ... is not a procedural defense, but a standard of general applicability for all petitions filed by state prisoners after the statute's effective date presenting claims that have been adjudicated on the merits by a state court.”). Congress set forth the standard in “unequivocally mandatory language.” Id. See 28 U.S.C. § 2254(d) (instructing that a state prisoner's petition for a writ of habeas corpus “ shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding”) (emphasis added). It is one thing to allow parties to forfeit claims, defenses, or lines of argument; it would be quite another to allow parties to stipulate or bind us to application of an incorrect legal standard, contrary to the congressional purpose. We therefore will review this claim under AEDPA's deferential standard.

2. Ineffectiveness at Penalty Phase

To determine the appropriateness of the death penalty, “evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.” California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987). Thus, in a capital case, defense counsel's duty to investigate “includes investigating petitioner's background” for such mitigating circumstances. Smith v. Gibson, 197 F.3d 454, 463 (10th Cir.1999). In Utah, a jury must find unanimously that the aggravation outweighs the mitigation beyond a reasonable doubt in order to impose the death penalty. Utah Code Ann. § 76-3-207. Reversing the death penalty is appropriate where there is a reasonable likelihood that the sentencing jury would not have sentenced the defendant to death if it had considered the mitigating evidence counsel failed to present. Williams v. Taylor, 529 U.S. at 391, 120 S.Ct. 1495 (2000); see, e.g., Wilson v. Sirmons, 536 F.3d 1064 (10th Cir.2008); Smith v. Mullin, 379 F.3d 919, 942 (10th Cir.2004).

Prior to trial, defense counsel arranged for a psychiatrist, Dr. Rindflesh, to meet with Mr. Gardner and prepare a report of his mental health. During trial, counsel contacted several other psychologists, none of whom were willing to meet with Mr. Gardner. Before the penalty phase, defense counsel enlisted the help of Dr. Heinbecker, who was contacted only after the guilty verdict was rendered, just two days before the penalty phase began. Dr. Heinbecker did not review Mr. Gardner's juvenile and institutional records until the day before he testified at the penalty phase. Defense counsel said that Dr. Heinbecker spent most of the day reviewing documents and then met with counsel in the evening. Dr. Heinbecker, who had testified in three other capital cases, stated, I “had never been in a case like this where I wasn't given adequate records ... or adequate time to review the records.” Aplt. Br. 27.

It is undisputed that Mr. Gardner's childhood was troubled in many respects. According to his submission on appeal, if the full, accurate picture of Mr. Gardner's background had been presented at the penalty phase, the jury would not have sentenced him to death. He argues that this evidence would have shown, inter alia, the following: he grew up in a dysfunctional family, the product of a broken home; he lived in a condemned house for some time, then lived with various foster families and was in and out of detention facilities; his step-father exposed him to criminal activity; the children in his family were sexually and emotionally abused; he was hospitalized for meningitis as a child, which could have caused organic brain damage; he had been sniffing gasoline since he was six years old, which could have caused brain damage; he was introduced to LSD by age ten; also by age ten he had been charged with public intoxication, shoplifting, petty larceny, grand larceny, gas sniffing, and violence against fellow students and his sister; at age eleven he spent one year in a locked facility at Utah State Hospital where he was introduced to pot and acid; psychological tests at the State Hospital revealed evidence of possible brain impairment; he scored a forty-seven on the Halstead Reitan Battery of tests, indicating moderate brain damage with possible implications on judgment; he was placed in a state industrial school at age fourteen; he has a tic, which could suggest brain illness; and, he has a history of “being immature, acting on impulse without any internal controls.” Aplt. Br. 30.

The Utah Supreme Court, overturning the conclusion of the state district court, held that counsel's failure to give Dr. Heinbecker more time to prepare for trial was insufficiently prejudicial to warrant habeas relief. Petitioner has not suggested that the Utah court failed to apply the proper constitutional standard. Applying AEDPA deference, we hold that the Utah Supreme Court's conclusion was not an “unreasonable application of ... clearly established Federal law as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

Notwithstanding the abbreviated period he was given to prepare, Dr. Heinbecker did testify to most of the above-summarized background information. He testified that Mr. Gardner had an unstable upbringing, the product of a broken home. His mother had difficulty disciplining her nine kids, his step-father was incarcerated, his family had lengthy criminal and substance abuse histories, and his mother was charged with parental neglect when Mr. Gardner was two and five. Dr. Heinbecker further testified that Mr. Gardner was in and out of state institutions for most of his life, and tests revealed some evidence of organic brain damage.

The information Dr. Heinbecker could have discovered and presented if given more time would likely only have added color to what Dr. Heinbecker actually did testify to at the penalty phase. Knowing of his difficult upbringing and possible brain damage did not convince a jury to forego the death penalty. It is not likely that further detail about Mr. Gardner's youthful drug use, criminal history, and scores on various mental tests would have changed the outcome. Additional evidence along these lines could even have a double-edged effect, to the extent that it could increase the jury's perception of Mr. Gardner's dangerousness. The greater the dysfunction in his family, the less likely it is that Mr. Gardner's violence would subside if ever released.

Moreover, specific evidence designed to show that Mr. Gardner was not fully in control of his actions could have opened the door to extensive and damaging rebuttal evidence. The jury had not been informed of a number of violent acts Mr. Gardner committed in the past, which appeared to be calculated and controlled. Had the defense presented evidence to show that Mr. Burdell's killing was a product of Mr. Gardner's upbringing, the prosecution probably could have introduced this damaging evidence in rebuttal. The prosecution also could have introduced expert testimony that Mr. Gardner's anti-social personality disorder would not impair his volition. Indeed, Mr. Gardner's own 1999 experts testified that he performs well under stress and always manages to stop when his life is threatened. In addition, the prosecution could have introduced Mr. Gardner's own statement that one of the motivating factors behind his attempted escape was his desire to return to drug use. Finally, the prosecution could have admitted evidence that his anti-social personality disorder was brought on in large part by his own actions, including extensive drug use.

Reasonable minds may differ on the likely impact on the jury of more thoroughly researched mental health testimony, as the differing assessments of the state judges demonstrates. The question before us, however, is not whether the Utah Supreme Court was correct but whether its judgment was unreasonable. Based on our review of the arguments and record evidence, it was not.

Mr. Gardner tries to compare this case to Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). In Wiggins, a 77-year old woman was murdered by being drowned in her bathtub and sprayed with insect killer. The Supreme Court held that defense counsel acted deficiently in not adequately investigating and presenting evidence of the defendant's troubled family and social history at sentencing. Though defense counsel had one psychologist run tests on the defendant and examined his social services records, Mr. Wiggins' attorneys claimed to have made a strategic decision not to investigate further or to present this evidence to the jury. Id. at 553, 123 S.Ct. 2527 (Scalia, J., dissenting). The Court held this was an insufficient investigation into possible mitigating circumstances. Wiggins, 539 U.S. at 534-35, 123 S.Ct. 2527. What defense counsel had found in its limited investigation showed a long history of foster care and abuse, and “any reasonably competent attorney would have realized that pursuing these leads was necessary to making an informed choice among possible defenses.” Id. at 525, 123 S.Ct. 2527.

This case, however, differs from Wiggins in two key respects. First, in Wiggins there was no apparent risk of opening the door to damaging evidence by introducing the potential mitigating circumstances of Mr. Wiggins' difficult childhood. Here, as outlined above, the prosecution could have presented extensive damaging evidence in rebuttal. Thus, it is much more likely in this case than in Wiggins that defense counsel made a reasonable, strategic decision in not introducing more specific evidence about Mr. Gardner's past.

Second, during the sentencing phase of Wiggins, defense counsel “introduced no evidence of Wiggins' life history.” Id. at 515, 123 S.Ct. 2527 (emphasis added). Here, Dr. Heinbecker testified about Mr. Gardner's difficult upbringing at the sentencing phase and his possible brain impairment. While there is a reasonable probability that one juror would have avoided the death penalty upon hearing of Mr. Wiggins' difficult background for the first time, Mr. Gardner's jury heard about his unfortunate life history and decided to sentence him to death anyway. The specifics of his past would not likely have made a significant difference, so no prejudice resulted.

In his Reply Brief, Mr. Gardner also relies on the lead opinion in Wilson v. Sirmons, 536 F.3d 1064 (10th Cir.2008), in support of his view that counsel's insufficient preparation and presentation of mental health evidence was prejudicial.FN2 This case is similar to Wilson in that trial counsel was ineffective in conducting only a limited investigation into the defendant's mental health and not offering available diagnoses at the penalty phase of trial. 536 F.3d at 1085-86. But there are significant differences in degree and context, which render that decision distinguishable. Indeed, even in Wilson, the court did not hold that counsel's inadequate preparation and presentation of mental health evidence was necessarily prejudicial, but instead remanded to the district court for an evidentiary hearing on prejudice. Id. at 1096. FN2. Wilson is currently under en banc review, but not with regard to the issue of prejudice. See Wilson v. Sirmons, 2008 WL 5170707, 2008 U.S.App. LEXIS 27448 (10th Cir. Dec. 2, 2008).

First, according to the expert in Wilson, the difference between his testimony at trial and what he could have said if he had more time for preparation was “enormous[ ].” Id. at 1077. Prior to his testimony, the expert administered tests that suggested a diagnosis of schizophrenia, but the tests were not valid and had to be readministered. The expert therefore could testify only to diagnoses of bipolar disorder, anxiety disorder, and post-traumatic stress disorder. Id. at 1075. After trial, on retesting and examination of additional information from other sources, the expert concluded that the defendant suffered from schizophrenia, paranoid type, and that it was possible that he was delusional at the time of the crime. Id. at 1077. The difference between Dr. Heinbecker's trial testimony and what he could have given after further investigation, by contrast, was purely a matter of degree. To be sure, Dr. Heinbecker could have provided more detailed testimony, but it would not have supported a different diagnosis.

Second, according to the lead opinion in Wilson, the evidence that could have been presented was far more likely to influence the jury than that in this case. According to the lead opinion, schizophrenia is likely to be regarded as more mitigating than generalized personality disorders because the latter are inseparable from personal identity and often untreatable. Id. at 1094 (“Diagnoses of specific mental illnesses such as schizophrenia or bipolar, which are associated with abnormalities of the brain and can be treated with appropriate medication, are likely to be regarded by a jury as more mitigating than generalized personality disorders, which are diagnosed on the basis of reported behavior, are generally inseparable from personal identity, and are often untreatable through medical or neurological means.”). Here, by contrast, even after full investigation the defense expert uncovered no diagnoses that were this potent a form of mitigation. Mr. Gardner did not suffer from hallucinations or delusions. There was only evidence of moderate brain damage, most of which was caused by his own drug use, and Dr. Heinbecker testified with regard to these impairments.

Third, in Wilson counsel did not even provide his expert witness an opportunity to testify regarding the diagnoses he had reached, or to explain the significance of those diagnoses to the jury, leading to a disastrous cross-examination in which the defendant was successfully portrayed as a “psychopath,” without effective response from the defense. Id. at 1076. Nothing of that sort occurred here. Despite the limitations under which he was operating, Dr. Heinbecker did an effective job of conveying mitigating evidence regarding Mr. Gardner's family history, possible organic brain damage, and social circumstances.

Finally, in Wilson our standard of review was de novo, and the state provided only a skeletal argument regarding the issue of prejudice. Id. at 1079, 1093-95. Here, the Utah Supreme Court decided the prejudice issue on the merits, and the state has fully briefed the prejudice issue. Thus, in contrast to the result in Wilson, we conclude that the Utah Supreme Court's decision that Mr. Gardner was not prejudiced by his counsel's failure to provide Dr. Heinbecker with more time to prepare was not unreasonable.

C. Ineffective Assistance on Appeal

We turn now to Mr. Gardner's claim of ineffective assistance by appellate counsel, which is based on counsel's failure to challenge on appeal a faulty jury instruction defining the mens rea element for first degree murder. The court gave the following instruction: A person engages in conduct: (1) “Intentionally” when it is his conscious objective or desire to engage in the conduct or to cause the result; or (2) “Knowingly” when he is aware of the nature of his conduct, or the existing circumstances, or is aware that his conduct is reasonably certain to cause the result.

Aplt. Br. 37 (emphasis added). Defense counsel did not object to the proposed instruction, but offered their own alternative instruction that was rejected. Gardner v. Galetka, 2007 WL 1071398, at *1, 2007 U.S. Dist. LEXIS 25651, at *7-8. The government has conceded that, read in isolation, the “knowingly” definition was erroneous in that it did not require the jury to find that Mr. Gardner acted knowingly with respect to his conduct and the result. See State v. Standiford 769 P.2d 254, 260 n. 3 (Utah 1998) (describing the mental state for first degree murder as the “purpose to kill”). The government argues, however, that no prejudice resulted. Mr. Gardner claims his appellate counsel provided ineffective assistance by not raising this issue on appeal.

Because this issue was not raised in state court on direct appeal or on application for post-conviction relief, the district court held the claim in abeyance while Mr. Gardner exhausted the claim in state courts. The Utah Supreme Court held that the claim was procedurally barred because it was not raised on direct appeal. Gardner v. Galetka, 94 P.3d 263 (Utah 2004) [ Gardner III ]. In reaching this conclusion, the state court applied Utah's 1996 Post-Conviction Remedies Act (PCRA). Id. at 268. Mr. Gardner, however, filed his initial state post-conviction petition in 1990, before the 1996 Post-Conviction Remedies Act was enacted. Accordingly, the federal district court certified the following question to the Utah Supreme Court: “If Mr. Gardner had raised the ineffective assistance of counsel claim at issue in Gardner v. Galetka, 94 P.3d 263 [ Gardner III ], in state court in a successive petition in 1990, would the petition have been procedurally barred?” The Utah Supreme Court responded affirmatively. Gardner v. Galetka, 151 P.3d 968 (Utah 2007) ( Gardner IV ). According to the Gardner IV court, the court would have dismissed the claim in 1990 based on the determination that Mr. Gardner's claim “could have been raised in a prior post-conviction proceeding” and that it did not fall within the common law “good cause” exception because it was “facially implausible” or “frivolous.” Id. at 973-74. “There is no ‘good cause’ that justifies bringing before a court a frivolous post-conviction claim. Indeed, there is no ‘fundamental unfairness' in dismissing a frivolous claim.” Id. at 974. The Utah Supreme Court characterized this rule as “procedural” because the bar was based on the successive nature of the petition.

The federal district court disagreed. The court reasoned that a threshold finding of frivolousness is “interwoven with federal law.” Gardner, 2007 WL 1071398, at 6*, 2007 U.S. Dist. LEXIS 25651, at *17. Thus, the court concluded that such a threshold finding required an examination of the merits, which precludes finding that the claim is procedurally barred under federal law. However, without addressing the deficiency prong, the court dismissed his claim because Mr. Gardner had failed to establish prejudice. Id.

We do not agree with the district court that the Utah Supreme Court's dismissal of the appellate ineffectiveness claim cannot be regarded as a procedural bar to federal habeas review. To be sure, the Utah court's frivolousness determination itself involves the merits of his jury instruction claim. See Backstrom Family Ltd. P'ship v. Hall, 751 P.2d 1157, 1160 (Utah Ct.App.1988) (the frivolousness inquiry requires a court to determine if a claim is “without reasonable legal or factual basis”). But the frivolousness inquiry is not the bar; it is an element of the exception to the bar. The reason the Utah court would not entertain Mr. Gardner's claim based on the jury instruction is that he failed to raise it as part of his first post-conviction petition, even though he could have done so. This is undoubtedly procedural. We do not think that a state's decision to allow exceptions to its procedural bar in the interest of preventing “fundamental unfairness,” which requires an examination of the merits, makes the underlying bar any less procedural. If this were so, any procedural bar with an exception based on avoiding a fundamental miscarriage of justice would lose its character as an independent procedural ground under Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). But we need not resolve this question, because we agree with the district court that Mr. Gardner's claim that the faulty jury instruction was harmful error fails on the merits.

“A misstatement of an element in jury instructions is subject to harmless error analysis on habeas review.” Scoggin v. Kaiser, 186 F.3d 1203, 1207 (10th Cir.1999). Error is harmless if it “appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Neder v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (internal quotations and citation omitted). The Utah Supreme Court concluded that it was “absurd” to suggest that any reasonable juror could reach a different verdict based on a proper jury instruction. 151 P.3d at 974. Because, as we have said, the Utah Supreme Court's frivolousness determination was a decision on the merits of the jury instruction claim, it warrants AEDPA deference. Under the circumstances here, we agree with the Utah Supreme Court that the faulty instruction could have had no effect on the outcome.

When returning the verdict, the jury foreman stated that the jury unanimously found Mr. Gardner had killed Mr. Burdell “for the purpose of effecting [his] escape ... from lawful custody.” Vol. XLIX, 2598. Thus, the jury must have concluded that Mr. Gardner intentionally shot Mr. Burdell, knowing that it would allow him to escape. Mr. Gardner does not dispute this conclusion. He argues, however, that in light of the instruction, it is not clear whether the jury found that he was “aware that his conduct [was] reasonably certain to cause the result,” that is, Mr. Burdell's death. In other words, given the disjunctive formulation of the instruction, the jury could have found that Mr. Gardner fired the bullet at Mr. Burdell for the purpose of effectuating an escape, but without intending or even knowing that the result would be Mr. Burdell's death.

Even if there was such an ambiguity, we agree with the district court that no reasonable juror “would find, given the totality of the evidence, that Mr. Gardner was aware of his conduct but was not reasonably certain that firing a loaded .22 caliber handgun directly into Mr. Burdell's head at point-blank range would result in Mr. Burdell's death.” Gardner, 2007 WL 1071398, at *9, 2007 U.S. Dist. LEXIS 25651, at *29. The jury unquestionably found that Mr. Gardner intended to pull the trigger. Under the circumstances, death was reasonably certain to result. Thus, the state court was not unreasonable in finding that the erroneous jury instruction resulted in harmless error.

D. Conflict of Interest Claim

Mr. Gardner next alleges that his representation suffered from a conflict of interest that deprived him of a fair trial. At trial, Mr. Gardner was represented by two brothers, Andrew and James Valdez. On the day of the courthouse shooting, each brother arrived separately at the scene. Having heard that Mr. Gardner had killed an unnamed attorney, each was fearful that the other might have been the victim. When each of them encountered Mr. Gardner, he inquired after the whereabouts of his brother.

Before the district court, Mr. Gardner asserted the existence of a conflict of interest on the basis of a variety of factual allegations, see Mag. Rep. 21. On appeal, however, he argues only that the conflict of interest stemmed from “the victimization of the Valdez brothers.” Aplt. Br. 78. Mr. Gardner alleges that this “victimization” occurred because of the Valdez brothers' fear for each other's safety after the courthouse shooting, as well as the fact that the Valdezes were familiar with some witnesses to and victims of the event. FN3 See id. The Utah Supreme Court rejected these arguments on the merits, in large part because Mr. Gardner could not demonstrate the existence of any deleterious impact on his representation. See Gardner II, 888 P.2d at 621-22. The district court concluded that the Utah Supreme Court's conclusion was a reasonable application of federal constitutional standards. Mag. Rep. 26-31. We agree.

FN3. The government argues that this claim was not raised before the district court and therefore is waived. There is some evidence, however, that the substance of this claim was raised before the district court. See, e.g., Vol. XIV, Doc. 607 at 5 (elaborating on idea that “the Valdez brothers themselves were victims of the crime”). Because we conclude that this claim fails on the merits, we need not resolve whether it was waived.

The right to counsel guaranteed by the Sixth Amendment includes the right to representation that is free from conflicts of interest. United States v. Bowie, 892 F.2d 1494, 1500 (10th Cir.1990). “In the context of a conflict of interest claim where there was no objection at trial ... the client must demonstrate an actual conflict of interest which adversely affected his lawyer's performance.” United States v. Alvarez, 137 F.3d 1249, 1251 (10th Cir.1998) (citation omitted). If the client can establish the conflict actually affected the adequacy of his representation, prejudice is presumed. Id. The client has the burden of showing specific instances to support his contentions of an actual conflict adverse to his interests. Id.

Mr. Gardner primarily points to Andrew Valdez's closing statement at his trial as evidence of the alleged conflict of interest. During his closing statement, Mr. Valdez described his personal fear on the day of the shooting, when he was anxious for his brother's whereabouts and safety. See Vol. L 2880 (Trial Tr. 1661) (“I got this fear because I hadn't seen my brother ... and I was so fearful at that point. And I went looking for [James] in the crowd. I didn't know it, but he had done the same thing. He had gotten there and had asked, ‘Where is Andy?’ He thought I had been killed. We found each other and rejoiced in each other's safety, and the fear subsided.”) Mr. Gardner argues that this suggests that trial counsel was unable to zealously advocate for him. But this ignores the thrust of Mr. Valdez's argument, by which he was attempting to convince the jury to set aside its fear when sentencing Mr. Gardner, just as he had set aside his fear and determined to continue representing Mr. Gardner because he “believe[d] in saving his life.” Id. at 2881 (Trial Tr. 1662). In other words, Mr. Valdez was arguing to the jury that just as he himself had been able to put aside his fear, the jury should and must do so in order to make a rational sentencing judgment. See id. at 2880-81 (Trial Tr. 1661-62) (“[I]f, in fact, you fall for the fear tactic, I would submit to you that that is not a rational basis to kill this man.”).

In context, Mr. Valdez's argument does not support the claim that his ability to represent Mr. Gardner was adversely affected by the impact of the courthouse shooting. If anything, it indicates that Mr. Valdez was attempting to use his experience to convince the jury to sentence Mr. Gardner to life imprisonment, rather than death. Because Mr. Gardner has failed to demonstrate any adverse effect from his attorneys' representation, he cannot prevail on his conflict of interest claim.

Mr. Gardner separately argues that the trial court erred by failing to hold an evidentiary hearing on this potential conflict of interest when the issue arose. Even assuming the trial court knew or reasonably should have known about the existence of a conflict, however, Mr. Gardner still would have to show that the conflict of interest “adversely affected his counsel's performance” in order to obtain habeas relief. Mickens v. Taylor, 535 U.S. 162, 174, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). As he has failed to make this showing, this claim also fails.FN4 Because we conclude that Mr. Gardner is unable to demonstrate the existence of a conflict of interest sufficient to warrant habeas relief, we need not evaluate whether the district court was correct to conclude that he waived any conflict that might have existed. Nevertheless, we note that a client may generally waive his right to conflict-free representation, when done voluntarily, knowingly, and intelligently. See Estelle v. Smith, 451 U.S. 454, 471 n. 16, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). The original trial record implies that such a waiver occurred in this case. See Vol. L. 2881 (Trial.Tr.1661) (“[The defendant] still, in spite of the possible conflicts, wanted us to defend him because we believe in saving his life.”).

E. Change of Venue

Before trial, Mr. Gardner moved for a change of venue, arguing that the pretrial publicity about his attempted escape and the shooting made it impossible for him to receive a fair trial in Salt Lake City. In support of his motion, Mr. Gardner submitted several dozen newspaper articles and videotapes of local broadcasts typifying the publicity. Mr. Gardner also relied on a survey, commissioned by his counsel, of approximately four hundred registered voters in Salt Lake City, concerning their knowledge of and reaction to the crime. See Aple. Br. 87-88. The survey purported to show that ninety percent of respondents thought that the defendant was either “guilty” or “probably guilty.” Gardner I, 789 P.2d at 277. Mr. Gardner finally took issue with the fact that his trial was held in the county courthouse, across the street from the building where the shooting had taken place.

The trial court denied Mr. Gardner's initial motion for a change of venue based on pretrial publicity, but left open the opportunity to renew the motion. Aple. Br. 89. The trial judge then conducted five days of voir dire, during which he asked the prospective jurors about their ability to remain impartial, asked them to explain any outside information that they had learned about the case, and allowed both prosecution and defense to conduct further examination. Id. After the jury was selected, Mr. Gardner renewed his motion for a change of venue and it was again denied.

Mr. Gardner raised the venue issue on direct appeal to the Utah Supreme Court, which affirmed the trial court. Gardner I, 789 P.2d at 277-78. Although the court acknowledged that many prospective jurors had been exposed to the basic facts of the courthouse shooting, it determined that this exposure did not warrant a presumption of prejudice. It noted first that a venire's exposure to the fundamental facts of an incident does not presumptively deprive a defendant of due process. See id. at 277 (citing Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975)). Second, it pointed out deficiencies in the survey conducted by Mr. Gardner, which diminished the inferences that might be taken from its results. See id. In particular, the court noted-and Mr. Gardner acknowledged-that when asked whether the defendant was “guilty,” the survey taker gave no explanation of what crime the defendant was charged with or what burden of proof the state was required to meet. Id. As a result, the Utah Supreme Court found that “any lay opinion as to guilt [indicated by the survey] was merely an affirmation that [Mr. Gardner] was the person involved in the incident, a fact conceded by the defense.” Id. Finally, the court explained that Mr. Gardner had not alleged any specific prejudice from the proximity of his trial to the courthouse where the shooting had taken place. For all these reasons, it concluded that the trial court had not abused its discretion in concluding that prejudice could not be presumed, and therefore denying the request for change of venue. Id. at 278. The federal district court found that the Utah Supreme Court's decision did not represent an unreasonable application of clearly established Supreme Court law. See Mag. Rep. 151; Gardner, 2007 WL 1071400, at *1, 2007 U.S. Dist. LEXIS 25643, at *13. We agree.

This court's precedents are not entirely consistent with regard to the standard of review to apply to a state court's decision regarding jury impartiality. Compare Goss v. Nelson, 439 F.3d 621, 627 (10th Cir.2006) (stating that only when a manifest error occurs can a federal habeas court overturn a state court's finding regarding jury impartiality as a whole), with Hale v. Gibson, 227 F.3d 1298, 1331 (10th Cir.2000) (asking whether state supreme court's finding that trial court did not abuse its discretion in rejecting change of venue was an unreasonable application of Supreme Court precedent); see also Patton v. Yount, 467 U.S. 1025, 1031 n. 7, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) (declining to decide whether it is appropriate for a reviewing court to apply a “manifest error” standard or to follow the ordinary level of deference afforded state supreme court decisions on habeas relief). In this case, because we find that the same result would follow from either standard, we need not resolve which standard is appropriate.

[20] [21] The Sixth Amendment, applied to the states by the Fourteenth Amendment, ensures that “[i]n all criminal prosecutions, the accused shall enjoy the right to a ... trial[ ] by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. Const. amend. VI. Due process may require a change of venue stemming from the “presumed prejudice” following from pretrial publicity in two related contexts. First, where pretrial publicity is so pervasive and prejudicial that a court could not expect to find an unbiased jury pool in the community, it should “presume prejudice,” necessitating a venue change. Goss, 439 F.3d at 628. Second, change of venue may be required where the effect of pretrial publicity manifested at jury selection is substantial enough to indicate the existence of prejudice within the jury pool. Id.

We consider first Mr. Gardner's claim that the pretrial publicity alone raised a presumption of prejudice. This is rarely the case. See United States v. Abello-Silva, 948 F.2d 1168, 1177 (10th Cir.1991) (“Presumed prejudice is rarely invoked and only in extreme situations.”), abrogated on other grounds by United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). “[P]rejudice will only be presumed where publicity ‘created either a circus atmosphere in the court room or a lynch mob mentality such that it would be impossible to receive a fair trial.’ ” Goss, 439 F.3d at 628 (quoting Hale, 227 F.3d at 1332). “Simply showing that all the jurors knew about the case and that there was extensive pretrial publicity will not suffice....” Hale, 227 F.3d at 1332 (quoting Stafford v. Saffle, 34 F.3d 1557, 1567 (10th Cir.1994)).

The Supreme Court has presumed prejudice from pretrial publicity alone only in exceptional settings-where the trial became “a hollow formality” or when the courthouse proceedings were overrun by the press “to accommodate the public appetite for carnival.” Murphy, 421 U.S. at 799, 95 S.Ct. 2031. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (massive publicity insisted that defendant was guilty; veniremen's names were published and prospective jurors were inundated by calls and letters); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (circus atmosphere created when pretrial hearings were broadcast live to community and at least twelve cameramen took motion or still pictures throughout the proceedings); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (sheriff videotaped defendant's detailed jailhouse confession-taken during “kangaroo court” proceedings without lawyer present-and assisted in broadcasting it numerous times to relatively small community).

Although the courthouse shooting generated significant pretrial publicity, Mr. Gardner points to nothing that suggests his trial devolved into a “circus.” Both the pretrial publicity and the survey conducted by the defense illustrated only that it was widely known that Mr. Gardner was involved in the courthouse shooting-a fact already conceded by the defense. See Gardner I, 789 P.2d at 277. It did not indicate that members of the venire had developed a fixed opinion as to whether Mr. Gardner's actions satisfied the legal standard for first degree murder. Nor was there any harassment of veniremen or indication that the media had so pervaded the proceedings as to create a carnival-like atmosphere.

As we have previously explained, “[P]re-trial publicity in topical criminal cases is inevitable.” Abello-Silva, 948 F.2d at 1176. If we were to require the relocation of every trial following a crime about which multiple stories were broadcast or published, the local trial of newsworthy cases would become the exception rather than the rule. Here, Mr. Gardner points to no circumstances so exceptional as to suggest that Mr. Gardner was unable to obtain a fair trial in Salt Lake City. Therefore, we cannot say that the Utah Supreme Court unreasonably concluded that a change of venue on the basis of pretrial publicity alone was unnecessary.

Mr. Gardner also fails to demonstrate that jury selection manifested such prejudice as to deprive him of a fair trial. A change of venue is warranted when “the jurors demonstrated actual partiality or hostility that [could] not be laid aside.” Jeffries v. Blodgett, 5 F.3d 1180, 1189 (9th Cir.1993). “We review [for prejudice based on jury selection] by examining the totality of the circumstances,” Stafford, 34 F.3d at 1567, bearing in mind that “[t]he trial court has broad discretion in gauging the effects of allegedly prejudicial publicity and in taking measures to insure a fair trial.” Abello-Silva, 948 F.2d at 1177. We may consider both the jury's responses to voir dire, as well as the nature and extent of the questions asked by the judge to ensure an impartial jury. See id. at 1177-78.

Evidence of community sentiment at jury selection has been used to invalidate a conviction in the rare situation when voir dire indicates that the pretrial publicity had such a pervasive effect that a fair jury could not be seated. In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), for instance, the Supreme Court invalidated a conviction where (1) the trial court had excused over half of the venire for cause due to fixed opinions as to the defendant's guilt, (2) ninety percent of jurors entertained some opinion as to guilt, and (3) eight of twelve jurors actually seated “thought defendant was guilty.” See Goss, 439 F.3d at 629 (describing Irvin ).

In recent years, the Supreme Court has made clear, however, that community prejudice should be inferred from voir dire only in exceptional cases. Thus, in Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), the court found there was no manifest error in refusing to change venue even though (1) pretrial publicity revealed inadmissible information such as defendant's prior conviction for murder and confession; (2) seventy-seven percent of jurors admitted they had an opinion about defendant's guilt; and (3) eight of the fourteen jurors and alternates actually sat had an opinion as to guilt. See Goss, 439 F.3d at 629 (describing Patton ).

In this case, although roughly fifty-five percent of jurors professed that they had formed an opinion about Mr. Gardner's guilt, Aplt. Br. 83, only four of twelve actually seated jurors indicated that they had formed an opinion to guilt-even fewer than in Patton. Of equal importance is the conscientiousness with which the trial judge worked to seat an impartial jury. “Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges.” Mu'Min v. Virginia, 500 U.S. 415, 431, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). The trial judge ably advanced both these goals through his conduct of voir dire in this case. Over five days, the trial court examined each of the prospective jurors personally about their knowledge of the facts of the case, as well as their ability to set aside pre-formed opinions and try the case solely on the evidence introduced at trial. The judge also inquired into the source and content of media information to which the venire had been exposed. Finally, he allowed counsel for both the prosecution and the defense to further question prospective jurors about their exposure to pretrial publicity. As a result, every member of the venire ultimately placed on the jury had assured the trial court that he or she could decide the case on the presented evidence alone.

The inference of actual prejudice here is no stronger than in other cases where we have rejected such claims. See, e.g., Hale, 227 F.3d at 1333 (affirming finding of no actual prejudice where trial occurred five to six months after crime, half of seated jury had opinions as to guilt or innocence, and trial judge asked only twice whether there were any jurors who felt they could not be impartial). Given the extent of the trial court's inquiry, as well as the nature of jurors' responses to those questions, we cannot say that the “high hurdle” necessary to establish the presence of prejudice has been met in this case. Goss, 439 F.3d at 630. Consequently, the facts do not establish either manifest error or that the Utah Supreme Court unreasonably applied Supreme Court precedent by rejecting claims of actual prejudice on the basis of jury selection.

F. Security Measures and Shackling

Mr. Gardner also argues that the security measures taken during his trial-including the presence of four security officers wearing bulletproof vests, electronic screening devices at the courtroom entrance, escorts for the jurors to get to their cars after dark, and, most importantly, visible shackles-violated his Sixth Amendment right to a fair trial by labeling him in the jurors' eyes as particularly dangerous. To determine whether the presence of security measures in the courtroom violates the Sixth Amendment, we normally ask “whether what [the jurors] saw was so inherently prejudicial as to pose an unacceptable threat to defendant's right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.” Holbrook v. Flynn, 475 U.S. 560, 572, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). Shackling, however, is deemed inherently prejudicial, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), and should be allowed only if “there are compelling reasons which would justify the use of physical restraints” such that the Sixth Amendment rights “yield to the competing interests of the courtroom participants for the safe conduct and orderly progress of the trial.” United States v. Hack, 782 F.2d 862, 867 (10th Cir.1986).

In Hack, we held that the trial court had not abused its discretion when it shackled two defendants who were on trial for attempting to forcibly hijack a prison transport plane and effect their escape. Id. at 867-68. Mr. Gardner posed a nearly identical situation. He not only had a history of violence, but was on trial for a murder committed while attempting to escape from a courthouse. The judge was justified in taking precautions to prevent another attempt. Mr. Gardner nonetheless attempts to distinguish Hack by noting that the judge in that case had “weighed all relevant factors based on the uncontroverted information available to him in considering the most appropriate precautionary measures” and his reasons were “sufficiently documented.” Id. at 868. Here, in contrast, the only record of the trial court considering what security measures would be appropriate arose when, mid-trial, Mr. Gardner objected to the presence of security guards within the courtroom and the court took steps to limit their visibility. We do not take the lack of detailed findings to mean that the court had abdicated its duty to weigh the need for precautions against the costs to Mr. Gardner, though, or to mean that the court was unjustified in allowing these extreme security measures. More likely it is the result of Mr. Gardner's not objecting to the security until the trial was well underway, and even then to object to only one particular measure, which the court immediately addressed. As Mr. Gardner had a history of violent escape attempts, the court had compelling reasons that justified these security precautions, and Mr. Gardner's Sixth Amendment rights had to yield to the competing interest of ensuring the safety of the trial participants.

G. Hypnotically Refreshed Testimony

Unbeknownst to both Mr. Gardner and the prosecution, Mr. Macri, one of the witnesses to the shooting in the archive room, underwent hypnosis between testifying at the preliminary hearing and testifying at trial. Mr. Gardner argues that Mr. Macri's post-hypnotic testimony violated his rights under both the Due Process and Confrontation Clauses. We have rejected the per se constitutional invalidity of hypnotically-refreshed testimony, Robison v. Maynard, 829 F.2d 1501, 1508 (10th Cir.1987), overruled on other grounds by Romano v. Gibson, 239 F.3d 1156 (10th Cir.2001), but we have also said that “[a] reviewing court must determine whether safeguards have been employed to insure reliability of the testimony to make it admissible.” Id.; see also id. at 1508, n. 8 (identifying some of the safeguards that had been present, such as making a record of the hypnotic session and performing the hypnosis in a manner designed to “minimize the danger of contamination”). This case, however, is quite different from the usual instances of hypnotically-refreshed testimony, as the hypnosis was not undertaken at the behest of the state but at the witness's own initiative, without the state's knowledge and without its ability to ensure safeguards.

The Utah Supreme Court did not address whether the hypnosis amounted to a constitutional error, but instead found that Mr. Gardner was not prejudiced by any error that might have occurred, as Mr. Macri's testimony “went only to a collateral issue that was, at most, marginally related to Gardner's defense.” Gardner II, 888 P.2d at 614. We agree. At the preliminary hearing, before undergoing hypnosis, Mr. Macri testified that he was standing behind a door when Mr. Gardner entered the archives room, and that he fled by going around the door. He testified, somewhat uncertainly, that as the door closed behind him, the gun went off, and that the events occurred simultaneously. At trial, after undergoing hypnosis, Mr. Macri testified with much more certainty that “simultaneous doesn't quite describe the motion.” Mr. Gardner contends that this change in testimony was prejudicial because the pre-hypnosis testimony supported the theory that the door slammed shut before the gun went off, suggesting that he fired because he was startled by Mr. Macri rushing out the door. Pre-hypnosis, Mr. Macri was a bit uncertain about the order of events but testified that his running out the door and hearing the gunshot all happened at about the same time, whereas after hypnosis he was more certain that the gun went off before the door closed behind him. In both versions, though, the door had already started to close before Mr. Gardner fired the gun, and both supported Mr. Gardner's startle theory and his own testimony that he had seen “a blur in front of [his] eyes” (i.e., Mr. Macri) and heard “another explosion.” Whether or not the use of post-hypnotic testimony was a constitutional violation, the slight difference in testimony the hypnosis may have produced was not enough to prejudice Mr. Gardner.

H. Witness Tampering

Mr. Gardner claims that the other eyewitness to the shooting, Kenneth Seamons, was “manipulated” by the prosecutor into altering his testimony during trial. An examination of what actually happened, however, belies any inference of prosecutorial indiscretion. At trial, Mr. Seamons testified that Mr. Gardner had pointed the gun at Mr. Burdell, and that “[t]he gun went off.” The trial then recessed for lunch. At lunch, the prosecutor told Mr. Seamons that he was “being too polite” in saying that the gun went off, and that “either [Gardner] did or he didn't” pull the trigger. He did not instruct Mr. Seamons to lie or even to change his testimony, but only instructed him to tell how it happened. After lunch, Mr. Seamons then clarified that “Gardner shot Burdell”-testimony that was not inconsistent with his earlier testimony. Showing a witness how his phrasing could be misinterpreted and then instructing that witness to “tell how it happened” is not witness tampering, but being a good lawyer.

I. Bifurcation

Utah law provides that aggravated murder can be a capital felony. One way in which a murder can be aggravated is if “the actor was previously convicted of” certain crimes. Utah Code Ann. § 76-5-202(1)(j). Mr. Gardner argues that the failure to have a bifurcated trial for his aggravating circumstances-two prior robbery convictions-prejudiced him. He cites State v. James, 767 P.2d 549, 557 (Utah 1989), which held that “[w]hen the underlying crime is charged, and enhancing circumstances involving other crimes ... are also charged for the purpose of increasing the severity of the punishment for the underlying crime, the trial court must divide the trial into separate segments.” (emphasis added) (citing State v. Bishop, 753 P.2d 439, 498 (Utah 1988)). Admitting prior crimes is “presumed prejudicial” to the defendant. Id. at 557.

Mr. Gardner says that the failure to bifurcate violated his “fundamental rights and constitutional guarantee of not having his death sentence imposed in an arbitrary and capricious manner.” Aplt. Br. 104. Mr. Gardner cites no direct authority tying the right established in James (decided after Mr. Gardner's trial) to a federal right.

In the state supreme court, concurrences by Justices Stewart and Zimmerman asserted that, in allowing the evidence of Mr. Gardner's two prior robberies, the trial court erred. Gardner I, 789 P.2d at 289. Justice Zimmerman, however, reasoned that the error was harmless. First, Justice Zimmerman stated that the prosecutor referred to the two robberies “only as necessary to demonstrate that the State had proven the aggravating element of first degree murder.” Id. at 290 (Zimmerman, J., concurring). Second, Justice Zimmerman noted that Mr. Gardner referred to his past crimes when he was on the stand. Id. Mr. Gardner “took the stand and disclosed his extensive criminal record, which included other convictions that were more prejudicial than the two robberies.” Id. Evidence of Mr. Gardner's prior crimes were thus admissible in order to impeach Mr. Gardner, as his counsel concedes. Aplt. Br. 105. The defendant shrugs this off as the product of ineffective assistance of counsel, but we have rejected that claim above. See supra at 876-77.

Both of these reasons echoed ones given by the majority. Gardner I, 789 P.2d at 279-80. In addition, the majority claimed that “because defendant's guilt was manifest by overwhelming direct evidence” there was no risk that the inclusion of his prior convictions would have had any prejudicial effect on the conduct or outcome of the trial. Id. at 279.

We find these three reasons persuasive and conclude that the failure to bifurcate the trial did not unfairly prejudice Mr. Gardner.

J. Failure to Instruct on All Statutory Mitigating Factors

Mr. Gardner makes the strained argument that the jury should have been instructed that he may have “acted under extreme duress.” Utah Code Ann. § 76-3-208(2)(c) (1990). Mr. Gardner says the jurors could have concluded that Mr. Gardner “was in a state of physical duress,” Aplt. Br. 107, as a result of his gunshot wound and his general panic. This is not a convincing argument.

First, the statutory factor would seem to apply only to cases where a person is acting under the duress placed on him or her by another, not when any abstract “force” (such as pain or disorientation) is working on the person. Mr. Gardner cites the unpublished case, Horton v. Massie, 203 F.3d 835 (Table), 2000 WL 107386 (10th Cir.2000), in which a person was threatened with death or physical injury by another. This, however, seems the classic instance of duress contemplated by the statute. See Utah Code Ann. § 76-3-207(2)(c) (mitigating circumstance if “[t]he defendant acted under extreme duress or under the substantial domination of another person.” (emphasis added)). Physical duress by gunshot wound, in contrast, is a stretch. No one forced or coerced Mr. Gardner into firing a shot.

Second, the instruction to the jurors allowed them to consider “any other fact in mitigation of the penalty.” Utah Code Ann. § 76-3-207(2)(g). They certainly could have considered Mr. Gardner's extreme physical duress, especially if this was a central theme of his defense, as he alleges. Aplt. Br. 107. The court also instructed the jury that the mitigating factors it listed were merely examples and not exclusive. Aple. Br. at 119 (quoting R. 613-17). This is all that was required of it. See Bryson v. Ward, 187 F.3d 1193, 1209-10 (10th Cir.1999). We see no error.

K. Presumption of Death

The judge instructed the jury in this case that: “When in the course of your deliberations you either reach a unanimous verdict of death, or you become reasonably satisfied that such a unanimous verdict will not be rendered, you will notify the bailiff that you are ready to report to the Court.” Vol. LIX, Additional Instructions, 6. The instruction also said: Your verdicts must be either: We the jury impaneled in the above case having heretofore found the defendant guilty of Criminal Homicide, Murder in the First Degree, Count I of the Information, unanimously render a verdict of death; or We the jury impaneled in the above case, Count I of the Information find that our deliberations have been concluded and we are reasonably satisfied that we will not reach a unanimous verdict of death. The foreman will sign the appropriate verdict, and not the other, and bring both verdict forms back into the Court. Id. at 7. Mr. Gardner claims that the jury instructions could reasonably have been read as requiring unanimity for the jury to decide not to impose the death penalty, and that this amounts to a constitutional violation. Aplt. Br. 110 (citing McKoy v. North Carolina, 494 U.S. 433, 442-43, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990)). Mr. Gardner contends that the jurors should have been told that an individual juror could exercise his own judgement and give full effect to a mitigating circumstance, even though other jurors did not.

The magistrate judge found that there was nothing in the jury instructions indicating that “the jury must unanimously find mitigating circumstances to exist.” Mag. Rep. 227. Moreover, the jury instructions above are clear that unanimity is only required for the death penalty to be imposed; if the jury is not unanimous on that point, then they will reach the alternative verdict (a life sentence). Indeed, as the magistrate judge explained, “[t]he only time the instructions provide that the jury must be unanimous is in their explanation of how the jury could impose a sentence of death.” Mag. Rep. 227-28. The district court adopted the reasoning of the magistrate judge, and we agree that no reasonable juror could have construed the instructions to require the jury to be unanimous in order not to impose a sentence of death.

III. CONCLUSION